Frere v. Missouri, Kansas & Texas Railway Co.

Citations

• 94 Kan. 57
• 145 P. 864
• 1915 Kan. LEXIS 43

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Action — Within Workmen’s Compensation Act — Tried Under Mining Act — Too Late to Complain After Judgment. An action which should have been brought under the workmen’s compensation act (Laws 1911, ch. 218, as amended by Laws 1913, ch. 216) was brought and tried as one arising under the act relating to mines (Gen. Stat. 1909, §4992). No suggestion was made by the defendant that either party had filed its nonacceptance of the provisions of the compensation act, and the pleadings and instructions were in accordance with an action brought under the mining statute, no request being made for different instructions. Held, that the defendant can not be heard to complain for the first time in this court on appeal that the petition contained no allegation that either party had elected not to accept under the terms of the compensation act.</p> <p>2. Permanent Injuries — Proof—Verdict and Judgment Sustained. Permanent injury is to be proved like any other issuable matter, and when there is competent testimony showing or fairly tending to show its existence, and the jury have found that the plaintiff was permanently injured and the verdict has been approved by the trial court, the judgment will not be disturbed.</p>