Loudy v. Elcomb Coal Co.

Court of Appeals of Kentucky (pre-1976)

Loudy v. Elcomb Coal Co.

183 S.W.2d 953, 298 Ky. 732, 1944 Ky. LEXIS 983

CourtCourt of Appeals of Kentucky (pre-1976)

DecidedDecember 1, 1944

StatusPublished

Cited by2 cases

This text of 183 S.W.2d 953 (Loudy v. Elcomb Coal Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky (pre-1976) primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Loudy v. Elcomb Coal Co., 183 S.W.2d 953, 298 Ky. 732, 1944 Ky. LEXIS 983 (Ky. 1944).

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Opinion

Opinion op the Court by

Stanley, Commissioner

Affirming.

The petition of the appellant, Calvin Loudy, against *733 the appellee, Elcomb Coal Company, was dismissed upon his failure to make it more certain and specific under order of the court or to amend after a general demurrer was sustained to it.

The petition merely alleged that the plaintiff was a coal loader in the defendant’s mines from May 15, 1940, to April 3, 1942; that he worked every day the mines ran between those two dates; that the defendant “gave him short weights on his tonnage of coal mined during said time by the plaintiff to the amount of 331 tons of coal at 65 cents per ton amounting to $215.15; that at another time the plaintiff mined 416 tons at 76 cents per ton amounting to $316.16 and 2061 tons at 3 cents per ton amounting to $6189. He says that the amount above set out is wholly unpaid, just and past due and owing him by the defendant and the defendant owes him $32.29 for-over charge, on electricity, clothes, bath house and the defendant owes him $138.00 over charge on rents amounting in all to $724.50 which is just and past due.”

In his brief the appellant merely says that the demurrer should have been overruled and that he could not make his petition more specific. The petition does not state a cause of action. It does not allege any relationship of employer and employe nor are the terms of any contract of employment or any facts given. The plaintiff merely states a conclusion that the defendant owed him the sums stated. No proper defense could have been prepared to such an indefinite and fatally deficient charge. We are of opinion, therefore, that the court properly dismissed the petition upon the failure of the plaintiff to comply with the order of the court. Reid v. Lyttle, 150 Ky. 304, 150 S. W. 357; Barnett v. Latonia Jockey Club, 249 Ky. 285, 60 S. W. 2d 622.

Judgment affirmed.

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Opinion op the Court by

Stanley, Commissioner

Affirming.

The petition of the appellant, Calvin Loudy, against *733 the appellee, Elcomb Coal Company, was dismissed upon his failure to make it more certain and specific under order of the court or to amend after a general demurrer was sustained to it.

The petition merely alleged that the plaintiff was a coal loader in the defendant’s mines from May 15, 1940, to April 3, 1942; that he worked every day the mines ran between those two dates; that the defendant “gave him short weights on his tonnage of coal mined during said time by the plaintiff to the amount of 331 tons of coal at 65 cents per ton amounting to $215.15; that at another time the plaintiff mined 416 tons at 76 cents per ton amounting to $316.16 and 2061 tons at 3 cents per ton amounting to $6189. He says that the amount above set out is wholly unpaid, just and past due and owing him by the defendant and the defendant owes him $32.29 for-over charge, on electricity, clothes, bath house and the defendant owes him $138.00 over charge on rents amounting in all to $724.50 which is just and past due.”

In his brief the appellant merely says that the demurrer should have been overruled and that he could not make his petition more specific. The petition does not state a cause of action. It does not allege any relationship of employer and employe nor are the terms of any contract of employment or any facts given. The plaintiff merely states a conclusion that the defendant owed him the sums stated. No proper defense could have been prepared to such an indefinite and fatally deficient charge. We are of opinion, therefore, that the court properly dismissed the petition upon the failure of the plaintiff to comply with the order of the court. Reid v. Lyttle, 150 Ky. 304, 150 S. W. 357; Barnett v. Latonia Jockey Club, 249 Ky. 285, 60 S. W. 2d 622.

Judgment affirmed.

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183 S.W.2d 953, 298 Ky. 732, 1944 Ky. LEXIS 983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loudy-v-elcomb-coal-co-kyctapphigh-1944.

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