ÆäÀÌÁö À̹ÌÁö
PDF
ePub

[Ed. Note.-For other cases, see Death, Dec. Dig. 44.]

2. DEATH 31-CIVIL ACTION FOR DAMAGES -REMARRIAGE OF WIDOW.

ceedings are sufficient to render the judg- | action, so as to defeat a recovery by them, so ment void. At most the matters referred to that they were entitled to join as parties plainare errors, and the remedy was by appeal tiff in a suit brought by her alone. or steps to vacate the judgment. Until the judgment be reversed on appeal, or modified or vacated by direct proceedings, it is binding on all the parties thereto. As said in Dawson v. Litsey, 10 Bush, 412, in considering a collateral attack upon a judgment rendered in proceedings where the parties and the subject-matter were within the jurisdiction of the court:

"Such errors are voidable only, and can be corrected alone by some direct proceeding furnishing grounds for vacating the judgment, as provided by the Code, or by an appeal; and it is only in cases where there is an entire want of jurisdiction that such judgments can be collaterally questioned."

See Dorsey v. Kendall, 8 Bush, 299; Revill's Heirs v. Claxon's Heirs, 12 Bush, 563; Ogden v. Stevens, 98 Ky. 566, 33 S. W. 932, 17 Ky. Law Rep. 1115; Oliver v. Park, 101 Ky. 1, 39 S. W. 423, 19 Ky. Law Rep. 179.

[3] Neither does the fact that the guardian was the purchaser void the sale. At most it was voidable at the option of the infants. When it appears that the sale was reported, and the bonds executed and approved, and the sale confirmed by the court, it stands as a valid sale until it is set aside or vacated after steps taken in the manner already referred to, and even then the title of Hopkins and his vendees would not be affected, unless it be made to appear that they were not bona fide purchasers. Civ. Code, § 391. As said in Clements v. Ramsey, 4 S. W. 313, 9 Ky. Law Rep. 174:

"The purchase was made by the guardian in his own right. Having been made by the guardian, the chancellor could have refused to confirm the sale. He saw proper to confirm it, and directed a deed made to him by the commissioner. That deed invested him with title, and where he sold to a third party, the latter held it against the infant and all others claiming under him. The sale was not void.'

See Morrison v. Garrett, 22 S. W. 320, 15 Ky. Law Rep. 305; Faucett v. Faucett, 1 Bush, 511, 89 Am. Dec. 639.

It appearing that neither the judgment nor sale were void, and that no steps were taken to reverse, vacate, or modify them, we conclude that the lower court properly adjudged that the appellees were the owners of the land, and the judgment is therefore affirmed.

ARCHER et al. v. BOWLING et al. (Court of Appeals of Kentucky. Oct. 12, 1915.) 1. DEATH 44-CIVIL ACTION-PARTIES

STATUTE.

The fact that the widow had remarried during the pendency of the suit did not affect her right to recover or that of the minor children.

[Ed. Note. For other cases, see Death, Cent. Dig. §§ 35, 37-46, 48; Dec. Dig. 31.] 3. DEATH 91-CIVIL ACTION-DAMAGES.

In an action under Ky. St. § 4, for damages for the death of her husband from the malicious use of firearms, etc., the plaintiff's marriage pending the suit did not diminish the amount of damages that might have been recovered by her if she had remained unmarried, or affect the amount that she and her children, as joint plaintiffs, might recover.

[Ed. Note.-For other cases, see Death, Cent. Dig. $$ 99-101; Dec. Dig. 91.] 4. DEATH 95-CIVIL ACTION-MEASURE OF

DAMAGES.

Under Ky. St. § 6, relating to damages recovered in a civil action for the death of a person killed by the malicious use of firearms, etc., the measure of damages was such a sum as would reasonably compensate the widow and children of the deceased for the loss of his earning power, together with such punitive damages as the jury might award; the widow taking one half and the children the other half. [Ed. Note.-For other cases, see Death, Cent. Dig. §§ 108, 109, 111-115, 120; Dec. Dig. 95.]

5. LIMITATION OF ACTIONS

INTERVENTION.

124-PARTIES

Where a widow's action for damages for the wrongful death of her husband, brought under Ky. St. § 4, had been begun within a year from his death, an application of his infant children to come into the case as parties plaintiff was not barred by the one-year statute of limitations, though not made until after that time.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 541; Dec. Dig. 124.]

Appeal from Circuit Court, Whitley County. Action by Mrs. Lewis Archer and others against Thomas Bowling and others. Judgment for defendants, and plaintiffs appeal. Reversed, with directions.

H. B. Brown, of Jellico, Tenn., and R. L. Pope and P. W. Hardin, both of Williamsburg, for appellants. H. L. Bryant, R. S. Rose, and Stephens & Steely, all of Williamsburg, for appellees.

CARROLL, J. On August 20, 1911, Lewis Archer was killed by Thomas Bowling. He left surviving him a widow and five infant children, and within the year his widow alone brought suit against Bowling and others implicated in the killing to recover damages for the death of her husband, under Under Ky. St. § 4, providing that the wid-section 4 of the Kentucky Statutes. This ow and minor children, or either, or both, of a person killed by the careless or malicious use section reads: of firearms, etc., may have an action against the one committing the homicide, and may recover punitive damages, a suit by the widow alone was for the benefit of herself and her minor children, and she could not control the

"The widow and minor child, or either or both of them, of a person killed by the careless, wanton or malicious use of firearms, or by any weapon popularly known as colts, brass knucks, or slung-shots, or other deadly weapon, or sand

bag or any imitation or substitute therefor, not [ in self-defense, may have an action against the person who committed the killing, and all others aiding or promoting, or any one or more of them; and in such actions the jury may give vindictive damages."

In a trial of this suit there was a verdict in favor of the widow, but on the appeal of the defendants the judgment was reversed for reasons stated in the opinion in Bowlin v. Archer, 157 Ky. 540, 163 S. W. 477. The mandate from this court was filed in the lower court in February, 1914, and in May, 1914, the infant children of Lewis Archer of fered a pleading asking to be made parties plaintiff in the suit. In this pleading they adopted the allegations of the petition and amended petition filed by their mother, and stated that since the first trial of the case, and pending the appeal, their mother had married, and they set up that they were proper parties plaintiff in the action, and should be permitted to prosecute it in their own behalf and for their own benefit, and they prayed to be made parties plaintiff and to be permitted to prosecute the action with her against the defendant.

[1] The trial court refused to permit this pleading to be filed, or to permit these infant children to be made parties plaintiff, and further adjudged that the widow was only entitled to damages "for whatever loss she sustained, if any, from the death of her first husband up until the date of her marriage with James Archer." From the judgFrom the judgment refusing to permit their pleading to be filed, and also from the judgment holding that the widow could only recover damages from the date of the death of her first husband until her second marriage, this appeal is prosecuted.

Martin v. Smith, 110 S. W. 413, 33 Ky. Law Rep. 582, was a case in which a suit under section 4 of the Statutes had been brought by the widow alone, and it appears from the opinion that the widow, after bringing the suit, moved the court to dismiss it. Pending this motion, the infant children of the widow and her deceased hus

band came into court and asked that they be made parties plaintiff and be permitted to prosecute the action in the name of their next friend. The court overruled the mo

tion of the infant children to prosecute the action in the name of their next friend, and, action in the name of their next friend, and, granting the request of the widow, dismissed the action brought by her. From this ruling the infant children appealed. In the course of the opinion the court said:

*

"Under the statute, *** the action may be brought by the widow and minor child, or children, jointly, or by the widow alone, or by the minor child or children alone, or, if there be neither widow, child, or children, by the personal representative of the intestate. * * If the action be brought by the widow alone, the minor child or children, appearing by their guardian or next friend, have the right to be made parties plaintiff. The widow cannot control the action so as to defeat a recovery by the minor child or children. She may, of course,

dismiss it in so far as she is concerned, but the dismissal as to her will not be permitted to interfere with its prosecution by the child or children if they are parties to it; nor will it bar an action instituted by them within the proper time. The statute was designed to benefit the children as well as the widow; the recovery, if any, being for their joint benefit."

Adopting this construction of the statute, we are of the opinion that the court erred in refusing to permit the infant children to join as parties plaintiff in the suit with their mother. The suit, although brought by her alone, was for the benefit of herself and her infant children. All of them were severally and jointly interested in the recovery and entitled to the benefit thereof.

[2, 3] The fact that the widow married during the pendency of the suit, did not af fect her right of recovery or that of the children. The case should be heard and disposed of without reference to her marriage, as the fact of her marriage did not have the effect of diminishing the amount that might have been recovered by her if she had remained unmarried, or affect the amount that she and her children, as joint plaintiffs, might be entitled to recover. Georgia R. R. Co. v. Garr, 57 Ga. 277, 24 St. 470, 15 N. E. 350, 4 Am. St. Rep. 548. Am. Rep. 492; Davis v. Guarnieri, 45 Ohio

[4] In actions like this the distribution of the recovery is fixed by section of the statute, providing in part:

from an injury inflicted by negligence or wrong"Whenever the death of a person shall result ful act, then in every such case, damages may be recovered for such death from the person or persons, company or companies, corporation or corporations, their agents or servants, causing the same. ***The amount recovered, less funeral expenses and the cost of administration, and such costs about the recovery, including attorney fees as are not included in the recovery from the defendant, shall be for the benefit of and go to the kindred of the deceased in the following order: * deceased leaves either a widow and children or a husband and children, then one-half to such widow or husband and the other one-half to the children of the deceased."

So that under this statute, in a case such as we have, the widow would be entitled to one-half of the amount recovered and the children to the other one-half; and the measure of damages is such a sum as will reasonably compensate the widow and children for the loss they sustained in the destruction of the power of the deceased to earn tion of the power of the deceased to earn money, and, in addition thereto, the jury may, as provided in the Statutes, give vindictive damages.

[blocks in formation]

by her. The only purpose of the tendered whether, as between Elam and Hickman, the pleading was to make new parties plaintiff to the action, and the court erred in not permitting the pleading to be filed. Wherefore the judgment is reversed, with directions to proceed in conformity with this opinion.

TIONMENT.

Hickman corner is the one named in his deed from Maurer, viz., 155 feet east of the Twelfth street corner, or whether a portion of the 18-inch block surplusage shall be apportioned between these two lot owners, and the corner in question be shifted further east, on Elam, in order that Hickman may share in it.

ELAM et al. v. HICKMAN et al. In effect, the judgment of the lower court (Court of Appeals of Kentucky. Oct. 12, 1915.) was to establish the corner and boundary BOUNDARIES 55- EXCESS LAND - APPOR-between Hickman and Elam as set forth in The owner of two lots in a block of land the deeds from Maurer, their common venin which there was a surplus of 18 inches con- dor. We are of the opinion that this judgveyed the property separately by deeds which ment was proper. specified with accuracy the number of feet conveyed. In an action between the grantees it was insisted that the corner of one of them as fixed by the deed should be shifted in order that he might share in the surplus. Held that, as it did not appear that the owner intended to convey his share of the surplus, and as there was no proceeding by all the owners in the block to apportion it, the parties were bound by the descriptions in their deeds.

[Ed. Note. For other cases, see Boundaries, Cent. Dig. §§ 278, 279; Dec. Dig. 55.]

Appeal from Circuit Court, Boyd County. Action between Mathew Elam and others and A. H. Hickman and others. From a judgment for the latter, the former appeal. Affirmed.

O. M. Elam and John W. Woods, both of Ashland, for appellants. John T. Diederich and J. B. Wilhoit, both of Ashland, for appellees.

NUNN, J. This is a controversy over a boundary line between the city lots of Elam and Hickman. These lots make up part of a block in Ashland, between Twelfth street on the west and Thirteenth street on the east, and Central avenue to the south, and Railroad alley to the north. The block, as laid out by the Kentucky Iron & Coal Manufacturing Company in the year 1854, contains six lots, each fronting 50 feet on Central avenue. Deeds were made by that company to its vendees for all the lots having the dimensions named. It appears, however, that there is a surplus of 18 inches in the block between Twelfth and Thirteenth streets.

The division line in controversy relates to lots 55 and 56. These two lots are in the middle of the block. The parties got their title from a common vendor, John H. Maurer. The Elam deed was made October 3, 1903, and transferred title to lot No. 56, having 50 foot front, and also to the adjacent 5 feet of lot No. 55. Three days later Maurer conveyed to Hickman the remaining 45 feet of lot No. 55. The deed specified the beginning corner as in the line of Central avenue, and 155 feet east of the corner of Twelfth and Central avenue. Maurer inherited the two lots from his father, who had owned them since 1873. The question here is

The boundaries in the Maurer deeds are minutely set forth, and it is admitted that Elam and Hickman took the land so conveyed, dimensions and all. There is no allegation that Maurer owned or intended to convey any more than he did convey, or that by oversight or otherwise he failed in anything. This is not an action between all the owners to apportion the surplusage in the block, as neither they nor Maurer nor the original vendor have been made parties. If the original vendor has ever been divested of title to the alleged surplus, and it had been made to appear that the surplus actually belonged to the lot owners in common, it would not be proper in this action to arbitrarily shift any corners of the lots in question in either direction, in disregard of the rights or equities of the other lot owners.

In Smith & Preston v. Prewit, 2 A. K.

Marshall, 155, where certain land was surveyed and patented with reference to one outside boundary, and granting 2,000 acres each to two patentees, but it subsequently developed that the boundary covered by these two excess was largely in of 4,000 patents acres, the court adjudged the surplus to be This rule divided equally between them. was followed in Respass v. Parmers' Heirs, 5 J. J. Marshall, 648.

But the situation here is more like that in the case of Vance v. Gray, 142 Ky. 267, 134 S. W. 181, where the court said:

"If we were back at the parting of the ways, and the original grantors were before us, and the conditions had not been changed, the case might possibly be worked out along the lines mapped out in the case of Smith & Preston v. Prewit, supra. But here, after the lapse of 40 years, during which time conditions have changed, the property passed into other hands, and improvements been made thereon, it will readily be seen that upon no just or equitable principle could the rule adopted in those cases be applied,"

See, also, 5 Cyc. 973.

But Elam insists that the "record shows that the surplusage belonging to the two Maurer lots is there now unoccupied by anybody but Hickman." We do not understand that the record shows any surplus as belonging to the two Maurer lots, or that there has ever been an apportionment of it. It is true

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

that the testimony of the city engineer shows O'Rear & Williams, of Frankfort, Allie W. that in a number of other blocks laid out Young, of Morehead, and Fogg & Kirk and by the Kentucky Iron & Coal Manufacturing H. S. Howes, all of Paintsville, for appellant. Company there was a surplus in varying J. F. Bailey, of Paintsville, for appellee. amounts, and that this city engineer and his predecessors in office set stakes in this and

other blocks at the corner of several lots, and in so setting stakes the block surplusage was taken into consideration. It appears that the purpose of this work of the engineers was for fixing cost of street improvements. But there is no proof that Hickman or any owners in this block assented to such apportionment or did anything that could operate

as an estoppel.

We are of opinion that the judgment of the lower court should be affirmed; and it is

so ordered.

CONSOLIDATED COAL CO. v. BAL-
DRIDGE.

(Court of Appeals of Kentucky. Oct. 14, 1915.) 1. MASTER AND SERVANT 199-INJURIES TO SERVANT FELLOW SERVANT."

A brakeman on a coal mine motor train, who, while making up the trip, gave directions to the motorman to go ahead or to back up, but who, when the trip was ready, would get aboard either on a car or the motor, while the motorman would take the trip to destination, the latter at all times having sole control of the trip, and in that regard being superior in authority to the brakeman, was not a fellow servant of the motorman.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 491; Dec. Dig. 199. For other definitions, see Words and Phrases, First and Second Series, Fellow Servant.] 2. MASTER AND SERVANT 189-INJURIES To SERVANT-NEGLIGENCE OF SUPERIOR SERV

ANT.

In Kentucky no recovery may be had from a master for an injury to a servant not causing death, resulting from the ordinary negligence of a servant superior to, and having immediate control of, or supervision over, the injured servant.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437-448; Dec. Dig. 189.]

3. APPEAL AND ERROR 1066 - HARMLESS ERROR-INSTRUCTIONS.

Under Civ. Code Prac. §§ 134, 338, 756, providing that the court must disregard trivial errors, not prejudicing the substantial rights of the party excepting, where, in an action by a brakeman on a mining car trip for injuries caused by the negligence of the motorman, who had immediate control of or supervision over the brakeman, the court erroneously authorized the jury to find for the plaintiff if the injury resulted from the "negligence" of the motorman, in violation of the rule that only gross negligence of a superior servant can subject the master to liability, but the evidence was such that if there was negligence at all it must have been gross negligence, verdict for plaintiff could stand, since the error was not prejudicial to the substantial rights of the defendant.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. 1066.] Appeal from Circuit Court, Johnson County. Action by Arlen Baldridge against the Consolidated Coal Company. Judgment for plaintiff, and defendant appeals. Affirmed.

coal mine motor train. The only other memNUNN, J. Appellee was a brakeman on a ber of the crew was a motorman. While making an outbound trip the motor collided with an empty coal car which it had left on the main track when making the inbound trip. Appellee was lying flat on the motor, rather behind the motorman, and was painfully injured in the collision. He sued to recover on account of the gross negligence of the motorman in operating and driving the car, and on the trial the jury returned a verdict for $370. Appellee's back and leg were bruised, but no bones were broken. He claims that he still suffers pain and inconvenience when his work requires hard use of his leg.

[1] Appellant asks for a reversal because, as it says, the brakeman and motorman were fellow servants, and therefore the court erred in refusing to give an instruction on that proposition. From the evidence we understand that in making up the trips or trains it was the duty of the brakeman to couple or uncouple the cars and give to the motorman proper signals to "go ahead" or "back up." When the trip was ready the brakeman would get aboard, either on the car or the motor, as he might feel the situation required, and the motorman would then take the train to destination. It is true, while making up the trip, the motorman responded to the brakeman's signals, but from the evidence it is clear that at all other times the motorman had sole charge and control of the train, and in that regard was superior in authority to the brakeman. Although these employés were, in the manner described, associated together in the same work, yet from the evidence they were not in the same grade of employment. The relative duties of these employés was not unlike that of the ordinary railroad engineer and brakeman, and it has been often held that an engineer and brakeman are not fellow servants, although employed on the same train. Howard v. C. & O. R. R. Co., 90 S. W. 950, 28 Ky. Law Rep. 891; L. & N. R. R. Co. v. Moore, 83 Ky. 684.

[2] Appellant insists that the court erred in giving instructions to the jury which allowed the appellee to recover for the mere negligence of a superior servant engaged in the same work. The rule in Kentucky is that no recovery may be had from a master for an injury to the servant, not causing death, resulting from the ordinary negligence of a servant superior to and having immediate control of or supervision over the servant. L. & N. R. R. Co. v. Brown, 127 Ky. 732, 106 S. W. 795, 32 Ky. Law Rep. 552, 13 L. R. A. (N. S.) 1135; I. C. R. R. Co. v. Coleman, 59

S. W. 13, 22 Ky. Law Rep. 878; I. C. R. R. | appear as the error itself.
Co. v. Mayes, 142 Ky. 382, 134 S. W. 436.

134, 338, 756.

Civil Code, §§

Although there was technical error in the instructions, it is manifest that the jury tried the case upon the real issue. Their finding against appellant established the fact of gross negligence, for all the proof was addressed to the question as to whether the motorman wantonly and recklessly ran the motor into the empty car. In view of this state of the record, we do not believe that the error was prejudicial, and therefore feel we would not be justified in remanding the case for another trial.

The judgment is therefore affirmed.

WEBER v. KNEPFLE.* (Court of Appeals of Kentucky. Oct. 15, 1915.) MUNICIPAL CORPORATIONS 289-BETTER

MENT ASSESSMENT VALIDITY-STATUTE.

[3] The court by the first and second instructions defined ordinary and gross negligence. Then by the third instruction authorized a finding for plaintiff if they believed the injury resulted from the "negligence" of the motorman. By another instruction they were authorized to find punitive damages for the plaintiff if they believed the motorman was guilty of "gross negligence" as defined by instruction No. 2. The instruction authorizing recovery for mere negligence was error, for the plaintiff was not entitled to recover at all unless there was gross negligence on the part of the motorman. But the moderate verdict persuades us to believe that the appellant was not prejudiced thereby. The jury found that the motorman was negligent. If there was negligence at all, it was gross negligence, and, under the facts in the case, the jury could not have reached one conclusion without arriving at the other. This motor on its inbound trip left the empty car at a switch on the main track for Hardin Dale, a miner, to shift it into his room. The motor went about 100 feet further in order to complete the trip and then started back. There is no dispute that the motor could have been stopped in 15 feet. Hardin Dale, who was attempting to switch the empty into his room, had a light on his cap, and could see the on-coming motor plainly, as the track was straight. He called to the motorman and told him not to bring the motor down until he could switch the car; and when the motor got within 20 or 30 feet of the empty, Dale heard the motorman say, "I will learn him to get the car in the clear." The ap-struction of the curbing and guttering was part pellee says he was lying face down and rather behind the motorman, and did not see the empty car ahead, or know that it had not been shifted into the room, but he heard the motorman say

"something about that he would learn him to stay out of the way, or get out of the way, and he swore at the time he said it."

Clark Walker was in 20 feet of the empty, and stepped off the track to let the motor pass. He heard Hardin Dale call to the motorman, but did not understand what he said. The motorman said the mine was foggy, and he did not see the empty ahead of him until within about 8 feet of it. He says that no one signaled or called to him, and that he did not intend the collision, nor did he speak any such words as those attributed to him by Hardin Dale and the appellee. This being the proof, if the jury believed the motorman, they necessarily believed he was not guilty of any negligence. If they believed the other witnesses, there was but one conclusion, and that was that the accident was the result of his gross negligence. To justify a reversal the error complained of must affect the substantial rights of the appellant, and that it does so affect them must as clearly

Ky. St. § 3565, provides that the cost of reconstructing public ways and of making footway crossings shall be borne exclusively by cities of the fourth class. Section 3566 provides that the cost of making sidewalks, including curbing and guttering, whether by original construction or reconstruction, shall be apportionAn ordinance of the city of the fourth class died to abutting property owners in such city. rected a reconstruction of the carriageway of the street, not providing for the construction of a sidewalk, but for curbing and guttering, and further providing that the reconstruction of the carriageway should be done at the city's cost, but that the cost of curbing and guttering should be assessed against abutting owners. In suit to enforce assessment warrants against a property owner, defendant contended that, since there was no provision in the ordinance for the construction of sidewalks, the reconof the reconstruction of the carriageway, and the cost thereof was payable by the city, so that the warrants were invalid. Held, that such assessments were valid, since the fact that in a single ordinance the council provided for the reconstruction of carriageway and curbing did not make the latter work part of the former.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 762, 765; Dec. Dig. 289.]

Appeal from Circuit Court, Campbell County.

Action by Edward J. Knepfle against Henry Weber. Judgment for plaintiff, and defendant appeals. Affirmed.

Nelson & Galagher, of Newport, for appel

lant. Courtland T. Baker, of Newport, for appellee.

TURNER, J. Appellee, a a contractor, brought this action against appellant to subject certain property owned by him on Fairfield avenue, Belleview, Ky., a city of the fourth class, to the payment of certain street assessment warrants issued for the reconstruction of curbing and guttering in front of appellant's property. The ordinance under which the work was done directed a recon

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

« ÀÌÀü°è¼Ó »