Case One of two
154 Ky. 670
Court of Appeals of Kentucky.
Sept. 17, 1913.

Appeal from Circuit Court, Knox County.
Action for damages for breach of contract by C. T. Rader against the Trosper Coal Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

In the coal mine at Trosper, Ky., there is what is called a straight entry. At a point on the left side of the straight entry is a trapdoor through which one enters what is called the crooked entry. Between these two entries is a pillar. The rooms are worked out from the crooked entry which slopes downward; thus water which accumulated in the head of the crooked entry ran down in the rooms to such an extent as to interfere with the work. A contract was made between the boss of the mine and C. T. Rader under which, according to Rader's version of it, he was to get the water out, keep it out, and do such work in the entry as the company would have to do in other entries, and in consideration of this it was agreed that he should have nine cents a ton on the coal mined from this entry, and if he got the coal out himself he was to get 45 cents a ton. He brought this suit against the company charging that, after he had gotten the water out of the entry, the company had discharged him and broken its contract. He alleged in substance that there were 30,000 tons of coal left in the pillars and stumps of the entry and 1,000 tons in the wall. On the other hand, according to the version of the contract as shown by the company, he was to be paid nine cents for the coal mined from the rooms, but his contract did not include the coal to be mined from the pillars and stumps. On a trial of the case he recovered a verdict and judgment for $1,518. The company appeals.

The first question to be determined is: Does the evidence offered by him warrant the verdict for $1,518? The only testimony relating to the quantity of coal which had not been mined at the time of his discharge is given by him. He said: "There were 11 pillars and 22 stumps. Some of them were over 300 feet long and some of them 100 feet. They varied in thickness, some 25 or 30 feet and others 8 or 10 feet thick. The coal was about 6 feet deep." He was then asked how many tons of coal remained in the mine and answered: "I believe the surveyor estimated it at 30,000 tons." The court excluded this answer. Then these questions and answers occurred:

"Q. Tell the jury in your own judgment how many tons of coal were in there.
A. Well, I expect there was that many there.
Q. Of your own judgment now?
A. I guess there was that much there. I have no right to dispute it."

These answers show that he was simply stating what the surveyor had told him. He does not profess to have made any measurements himself or to have known any facts from which he could make an estimate. His statements as to the size of the pillars and stumps are too vague to be of any value, for he does not tell us how many were large or how many were small. Such evidence is too uncertain to sustain the verdict for $1,518. There is another defect in his testimony. The court properly told the jury that the measure of recovery was the difference between the contract price and the fair and reasonable cost of doing what he was to do under the contract. He does not state any fact from which an intelligent judgment can be formed as to what a reasonable cost of doing the work that he was to do under the contract would have been, or how long it would have taken to get out the coal referred to. He said: "The contract was for me to have 9 cents on every ton of coal that those fellows mined down there, and if. I loaded any myself it was to be 45 cents. But in the first place this water was to be all got out. So I went ahead and got the water out. I was to keep up the track and keep it in repair. I was not to perform any duties in connection with this entry other than the duties of the company itself toward the mine. I was just to keep it in condition for the miners to get the coal. If I should have a bad place in the entry that should have been my duty to have fixed it. I was just to place myself as the company and to keep it in working condition." What would have been a reasonable cost of doing this, we are left entirely to conjecture, and the verdict for this reason also cannot stand.

Rader testified on the trial that the boss told him that he was making too much money, and that he was discharging him for this reason. The company offered to prove that after Rader quit they paid other men at the same rate they had been paying him to do the same work. This proof the court properly excluded. The company may show by witnesses what was the fair and reasonable price for doing the things Rader was to do under the contract, but it cannot show what it expended after Rader quit without showing first that such expenditures were reasonable. This it may do.

To show that the contract between Rader and the company did not include the taking out of the pillars, the company introduced Wes Parr and proved by him that Rader proposed to him that he should go to see the boss and obtain a contract from the boss for Rader and Parr as partners to take out the pillars; that Parr at Rader's request did go to see Ross, the mine boss; and that Ross declined to make the contract saying that he had already made a contract with another person. The court declined to allow the company to prove what took place between Parr and Ross or to prove that Parr told Rader what had taken place between him and Ross. As Rader had sent Parr to Ross to get a contract for them two, and Rader was to be a partner with Parr, Parr was Rader's agent in the conversation with Ross, and what was said between Ross and Parr was competent against Rader. It was also competent for the company to prove that Parr reported to Rader what Ross had said and what Rader said to Parr when this was told him.

The instructions of the court not having been complained of in the motion for new trial, no question as to errors in them can be considered on the appeal. But for the reasons indicated the judgment is reversed, and the cause remanded for a new trial and further proceedings consistent herewith. On the return of the case to the circuit court, the amended answer will be allowed to be filed.

Ky.App. 1913.
159 S.W. 536, 154 Ky. 670
Case two of two
166 Ky. 797
Court of Appeals of Kentucky.
Nov. 18, 1915.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
Action by C. T. Rader against the Trosper Coal Company.
From a judgment for plaintiff, defendant appeals.

This is the second appeal of this case. The opinion on the former appeal may be found in 154 Ky. 671, 159 S. W. 536. The first judgment was reversed because of indefiniteness in the proof of damages. On the second trial plaintiff recovered a judgment for $900. Defendant appeals.

The defendant made a motion to discharge the jury panel, on the ground that the sheriff, in violation of section 2274, Ky. Stats., summoned 15 bystanders to try the case. The motion was overruled, and defendant insists that this was error. The facts on which the motion is predicated appear only in the motion itself. No affidavit accompanies the motion. There is no order of court showing that 15 bystanders were summoned by the sheriff; nor are the facts certified to in the bill of exceptions. This court cannot assume that facts appearing only in a motion are true. For aught that the record shows, the trial court may have overruled the motion because the facts stated were not true. Unless the facts relied on to obtain the discharge of a jury panel are supported by an affidavit which is made a part of the record, or are verified by an order of court, or are certified to in the bill of exceptions, the action of the trial court in refusing to discharge the jury panel is not subject to review.

The point is again made that plaintiff failed to show with reasonable certainty the amount of damages he sustained. Under his version of the contract, he was to get the water out and keep it out of a certain entry in defendant's mine. For this service defendant was to pay him 9 cents a ton on the coal mined from this entry, if taken out by the company, but, if taken out by him, 45 cents a ton. According to plaintiff's version, the contract included the coal left in the pillars and stumps of the entry, while defendant claims that the stumps and pillars were not included. Rader says that the cost of getting and keeping the water out of the entry was about 3 cents a ton, and that he could have made a clear profit of 6 cents a ton. Plaintiff's witnesses estimate the amount of coal left in the entry at from 25,000 to 37,000 tons. While it may be true that the estimates of his witnesses are excessive, we conclude, from an examination of all the evidence in the case, that it is sufficient to sustain the verdict of the jury, which is based on a finding of 15,000 tons.

Complaint is made of the fact that H. H. Owens, one of defendant's attorneys, who is also a graduate of Harvard and a mining engineer of considerable experience, was called by plaintiff and testified, over defendant's objection, to the number of tons of coal in an acre. It is the rule that an attorney cannot testify concerning any communication made to him by his client in that relation, or his advice thereon, without his client's consent, but that in all other cases he is a competent witness for or against his client.

The real issues between the parties being covered by the instructions given by the trial court, we find no prejudicial error in the refusal of the trial court to give any one of the instructions offered by the defendant.

Judgment affirmed.

Ky.App. 1915.
179 S.W. 1023, 166 Ky. 797

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