Brooks v. Madden ( 1923 )

Opinion of the Court by

Judge Thomas

Affirming.

Appellant, James Brooks, an infant by bis next friend, Jonas Ellis, filed tbi-s action in the Fayette circuit court seeking by the original petition the recovery of a judgment against defendant, Madden, for the sum of twenty-five thousand dollars, and “to prohibit” defendant, State Racing Commission,'frnm its alleged unlawful interference'with'plaintiff iii obtaining employment by other's than Madden as an exerciser and rider of race horses. It was alleged in the petition that Madden owned a farm in Fayette county whereon he bred and trained race horses' and ran them on the various tracks of the country; that in 1916 plaintiff began work for him on that farm as an exerciser of horses, and' that some time in 191? he was forced by Madden against his will to go with and look after a lot of horses,, which were sent to the city of Louisville for training or .some other purpose; that in like manner he was later compelled by Madden against his will to go to New York- on a similar mission, and that rnnder compulsion he was forced to serve Madden until December 2, 1919, when he managed to make Ms- escape and returned to his mother in Lexington, and that as a consequence “he has, suffered great injury and damage-by reason of being restrained of his liberty and being compelled to labor and serve the defendant, John E. Madden, against his will and consent, and being transported out of the state of Kentucky against his consent in the full sum of twenty-five thousand dollars ($25,000.00).”, The alleg’ed wrongful acts committed by the State Racing Commission, as appears from the petition, were done after plaintiff escaped from his imprisonment by Madden and returned to Lexington.

On June 3, 1920, Madden entered motion to require plaintiff to elect as against which defendant he would proceed, upon the ground that the causes of action attempted to be relied on against the separate defendants were entirely distinct and wholly disconnected. That motion was sustained and plaintiff was given ten days in which to make his election. He declined to do s.o but moved the court to elect for him, which motion was overruled, and.he then filed a written, motion declining to elect. Whereupon, the court elected for him that he should prosecute his supposed cause of action against Madden and dismissed it as against the State Racing Commission. At a. subsequent term of -the court plaintiff tendered an amended petition in which he alleged that by the wrongful .acts of the State Racing Commission he had been deprived of work for others than Madden and of earning wages of one .hundred dollars-per month which.his skill and ability commanded and that he.was compelled to work at other employment at about thirty dollars per month and that he had thereby been damaged in the sum of $889.20, for which he sought judgment against both defendants, and that the State Racing- Commission be “enjoined” instead of “prohibited,” as prayed in the original petition, from further interference with his employment. The court declined to allow that amendment to be filed. Madden, in his answer, denied the alleged grounds of complaint against him and affirmatively pleaded that he entered into a written- contract with plaintiff and his mother (the father being dead) by which he employed the services of plaintiff for one year as a hostler and an exerciser of horses and to train him as a race rider with the privilege of extending that contract for another year at a stipulated monthly wage, a part of which was to be paid to plaintiff and the remainder to his mother, and that the contract was strictly performed by him according to its 'terms and obligations. Appropriate pleadings made the issues and upon trial the court gave a peremptory instruction in favor of Madden and overruled plaintiff’s motion for a new trial, from which, judgment he has appealed.

From the above brief .statement of the pleading’s it requires no argument or citation of cases to show that, under the provisions- of section 83 of the Civil Code of Practice, there was a clear misjoinder of causes of action, arid under the provisions, of section 85 of the same Code the motion to require plaintiff to elect was properly sustained, and under the same provisions it was likewise proper for the court to strike from the petition either of the improperly joined causes upon plaintiff’s refusal to elect. That being true, it necessarily follows that the court did not err in rejecting the offered amended petition by which the State Racing Commission was again sought to be brought into the case upon substantially the same facts as alleged against it in the original petition, or upon facts which formed an equally independent and separate cause of action, if any at all. There is therefore no ground for complaint against the judgment in favor of the State Racing Commission.

A vigorous argument is made in brief of counsel for plaintiff that Madden, under the alleged facts, was guilty of peonage as defined by .section 3944 of the Federal Statutes and punished as prescribed by section 10444 of the sarhe statutes. But that argument does not appeal to us because the facts appearing in the record do not constitute peonage within the contemplation of that statute.

Plaintiff’s counsel also insists that the facts show an effort to create the relationship of “master and apprentice,” as provided by chapter 81 of the 1922 edition of Carroll’s Kentucky Statutes, nearly all of the sections thereof are copied in brief, and that they were not complied with and because of which, he reasons, that a great wrong was perpetrated on his client, for which he is entitled to recover. This court, however, in the case of Cain v. Garner, 169 Ky. 633, held that such contracts were valid in so far as they were executed and, inferentially, it was held that they did not come within the purview or were included in the statutory provisions for apprenticing minors, and for that reason the reliance of counsel upon the statute can be given no effect in this case. If, however, there had been an attempt to apprentice plaintiff to the defendant, Madden, and it was abortive because of a failure to conform to some statutory prerequisite in order to create the relationship, it would then remain to be shown that the master would be liable for false imprisonment because of services executed pursuant thereto. We are. thoroughly convinced that the only consequence of such an abortive effort, provided the relationship was wrongfully entered into, would be the loss to each party of the remedies given by the statute for the enforcement of that relationship, and not a right to recover damages because of the failure to comply with the statute, which, therefore, it is clearly apparent has no bearing upon the case whatever.

Plaintiff and his mother, who testified as a witness in his behalf, claimed that the written contract entered into in the early part of 1917, .after he had worked .some time under an oral one, was not signed by the latter, although it is conclusively proven that plaintiff himself ■signed it. We are thoroughly convinced, however, that if the mother did not in fact sign her name to it' she consented thereto. However, we do not consider that fact either material or anywise important, since it is admitted by both of them that throughout the term of service the agreed wages were paid monthly, he receiving his proportion and his mother her proportion. It is true that he testified that some colored person at the stables on defendant’s farm drew a revolver on him and forced him against his consent to make the first trip from Lexington to Louisville, but there is no pretense that such person represented Madden or had any authority to act for him of was even working for him. It is not pretended that lie was in any manner forced' by any one to remain in Louisville, where he continued to draw his monthly' wages, nor was lie in any manner forced to leave Louisville and go to New York with the horses, of defendant. It is true he and his mother testified that the latter was not notified of the contemplated trip to Louisville, but as stated'both he and she continued to draw the wages from that time till he quit the employment. The alleged cause of action therefore, if we should concede the sufficiency of the petition as against Madden, is about as much unproven as any ease which has come under our observation, and there being no violation of any statute affording the cause of action, the court properly directed the verdict in favor of defendant.

Wherefore, the judgment is. affirmed.