
    No. 19,193.
    Jules Frere, Appellee, v. The Missouri, Kansas & Texas Railway Company, Appellant.
    SYLLABUS BY THE COURT.
    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.
    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.
    Appeal from Cherokee district court; Edward E. Sapp, judge.
    Opinion filed January 9, 1915.
    Affirmed.
    
      W. W. Brown, James W. Reid, both of Parsons, and Al. F. Williams, of Columbus, for the appellant.
    
      C. A. McNeill and E. V. McNeill, both of Columbus, for the appellee.
   The opinion of the court was delivered by

West, J.:

June 26, 1913, plaintiff filed his petition charging that on April 19, 1913, he was burned while working in a coal shaft in one of defendant’s mines, by an explosion of gas. It was charged that the defendant knew or should have known that gas was generating in the mine and that explosions were liable to occur; that the defendant unlawfully and negligently failed to have the working places therein examined or properly inspected. The answer consisted of a' general denial and an allegation that whatever injury occurred was due solely to the plaintiff’s carelessness and failure to comply with the orders and instructions of the mine foreman; further, that he knew the exact condition; that he assumed the hazards, and that the coal produced by the mine was used in interstate commerce. The jury returned a verdict in favor of the plaintiff for $1000, $410 of which were for permanent injuries as shown by the special findings. The instructions were strictly in line with an action under the statute for failure to comply with the provisions governing the operation of mines, the jury being expressly told that the laws of this state require the operator of a coal mine -to appoint a competent fire boss, whose duty it is to carefully examine and inspect every working place and opening in such mines, and to notify the employees of the existence of fire damp or gas, and that a willful failure to comply with these provisions or any violation of them, which was the proximate cause of the injury, would make the defendant liable. The defendant appeals, and insists that the petition contained no allegation that either party had elected not to accept under the terms of the compensation act, and that there was no evidence to sustain a recovery for permanent injuries.

Under section 7 of chapter 216 of the Laws of 1913 all employers entitled to come within the provisions of the act shall be presumed to have done so unless they file with the secretary of state a written statement that they do not so elect, and under section 8 a similar rule is laid down touching employees. It is argued that in the absence of an allegation of nonacceptance it must be presumed that the parties were acting under the compensation act. The plaintiff replies that under the circumstances of the case he should be permitted to amend his petition and prove what he suggests is a fact not shown by the record — that the defendant had filed a, statement, which has been a matter of record since April 19,1913; that unless thus permitted, the remand, if ordered, should be for the sole purpose of trying this question.

When the parties are actually within the purview of the compensation act no other remedy than the one therein provided remains. (Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193; McRoberts v. Zinc Co., 93 Kan. 364, 144 Pac. 247.) The statutory presumption that all employers affected by the act are within this provision remains until the contrary appears, and the matter of election to stand outside of the provision is an affirmative defense. Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244.) Presumptions of law need not be pleaded. (Civ. Code, § 131.) As the pleadings, proceedings and instructions were all in line with a statutory action for damages under section 4992, and as the affirmative defense of nonelection was not presented, it is difficult to see how the defendant can complain.

As to the other question presented, while it is true that it was testified by physicians that the bums were first-degree burns, and that a gas explosion to affect the hearing would have to be strong enough to burst the ear drums, still the testimony showed that the bums covered the face, ears, back of the neck, both hands and a portion of the forearm; that the plaintiff was confined to his home about two weeks; that at the time of the trial, which was seven months after the injury, the plaintiff’s right ear was at times swollen and blistered on the inside, and caused an eruption so that the plaintiff could not hear, and that he could hardly read at nights on account of the injury to his right eye; that he never had anything wrong with him before the injury; that whenever his ears were swollen he could not sleep on account of a sensation like that of a hammer pounding. One of the physicians, testifying on behalf of the plaintiff, was asked if from the character of the injury he saw, after the burns had passed away they would leave no permanent injury, and his answer was: “I could not say that.” Numerous authorities from other states are cited to the effect that before recovery can be had for permanent injury reasonable certainty of such injury, and not merely possibility thereof, must be shown. This is also the rule in this state. In C. R. I. & P. Rly. Co. v. Kennedy, 2 Kan. App. 693, 43 Pac. 802, it was said:

“Before such damages can be given, the evidence must show that the permanency of the injury is reasonably certain; there must be more than a mere possibility that such will be the result.” (p. 702.)

It was further said that the jury should have been instructed as to the degree of proof required, but that the failure so to instruct would probably not be reversible error, as no further instruction was requested on that subject. There is no essential difference between proof of permanent injury and proof of any other matter. If competent evidence showing or fairly tending to show its existence be submitted, the weight and effect thereof are for the jury, and from the evidence already referred to it would seem fairly deducible that the plaintiff will never be free from the results of. the burning and concussion.

Finally, no objection was made to proceeding as if the action were one for damages under the act relating to mines (Gen. Stat. 1909, § 4992). No instruction was offered touching the compensation act, but both parties tried the issues as framed by the pleadings, and on that basis no error is apparent. It is too late now to invoke the provisions of the compensation act for the first time.

The judgment is affirmed.  