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come convinced that the part of the above ex- , the jury to find for the defendant, as directcerpt which holds that an employé situated ed in the original opinion, it will submit to as the decedent was in this case (he being a the jury only the issue of the defendant's licensee) was not entitled to have defendant's negligence in failing to have the headlight to engines equipped with headlights was error. its engine burning, and the issue of the deceThe opinions referred to in fact hold to the dent's contributory negligence, together with contrary, upon the idea that, it being the du- an instruction upon the measure of damages. ty of a licensee situated as decedent was in The original opinion, therefore, is modified this case to discover the approach of trains, to the extent herein indicated. it was the duty of the railroad company to equip its trains so as to give him a reasonable opportunity to discover their approach;

(181 Ky. 101)

FENNELL V. FECHTER. one of such equipments being a burning headlight on the engine while running the train in (Court of Appeals of Kentucky. June 11, the nighttime. The same interpretation of

1918.) the two Yocum Cases, supra, has been adopt- 1. CONSPIRACY Cm14_JOINT TORT-FEASORS, ed by this court, since rendering the original JOINT AND SEVERAL LIABILITY. opinion, in the case of Louisville & Nashville Where the employé of a druggist conspired Railroad Co. v. Mullin's Adm'x, 181 Ky. 148, with a third person to rob the druggist, and pur203 S. W. 1058.

the third person, the employé stole goods of the [4, 5] As stated in the original opinion, the value of $1,000 from his employer, the emevidence greatly preponderates that the head-ployé and the third person were jointly and light on defendant's engine at the time of severally liable to the druggist for his loss, and light on defendant's engine at the time of he could have sued his employé and the third the collision with the hand car in which de-person jointly, or either of them separately, and cedent was riding was burning, yet there recovered from them separately or jointly his was sufficient evidence to authorize the court full damages, as they were joint tort-feasors.

2. RELEASE O 29(1) -- JOINT WRONGDOERS -under the scintilla rule to submit that issue

FAILURE TO RESERVE RIGHT AGAINST ONE. to the jury, although its finding that the Where the employé of a druggist and a third headlight was not burning may have been person conspired to rob the druggist, which they flagrantly against the evidence. This modi- 588 for a release, whereby the druggist ac

did, and the third person paid the druggist $1,fication also necessitates a brief considera- knowledged full payment and satisfaction of all tion of the issue of contributory negligence, claims and demands of every kind and character raised by the pleadings and relied upon by against the third person, and released him from the defendant. Upon that issue it was shown damages, it not appearing in the writing that that there were signal boards by the side of the settlement with the third person was only the track at stated distances, indicating that in part satisfaction of the druggist's claim the train was in the block, and that there intended to release the third person without af

against his employé and the third person, only were a least two of them between Berea and fecting the druggist's right to pursue his emthe place of the accident, and it is insisted ployé, the settlement made with the third per

son was a satisfaction of whatever claim the that it was negligence sufficient to defeat a druggist had against both his employé and the recovery for the decedent not to have discov- third person growing out of the same wrongdoered the approach of the train by observing ing, since, in the absence of express reservation,

he could not settle with one of them without the signal indicated by those boards. But it

settling with the other. is shown that the signals indicating the ap- 3. PAYMENT Om51 JOINT WRONGDOERS proach of the train were on the opposite side CREDIT. of the boards from the direction decedent was joint wrongdoers, though it is not accepted in

Where a payment is made by one of two traveling, and in order to see them he would satisfaction of the cause of action or the claim have had to look backward, not being able to against all of them, the payment so made must do so by looking forward, the way his hand go as a credit on the claim against the others. car was traveling. The train producing the Appeal from Circuit Court, Campbell collision was not a regular one, but was a County. second section of a regular train, which had Action by C. R. Fennell against John Fechpassed the hand car at the public crossing ter. From judgment of dismissal, plaintiff about four or five minutes before. There was appeals. Affirmed. nothing indicating to the decedent that an

Healy & Hawkins, of Newport, for appelextra train was contemplated, or that a sec- lant. Barbour & Bassmann, of Newport, for ond section of the regular train was ap- appellee. proaching. Under the circumstances we think the issue of contributory negligence

CARROLL, J. The appellant, Fennell, filed was a question for the determination of the in the Campbell circuit court his petition jury under proper instruction. In all other against the appellee, Fechter, in which he respects the original opinion is adhered to. alleged that he was the owner of a drug store

So, if the evidence upon another trial is in the city of Newport known as the Modern substantially the same as upon the last one, Drug Shop, and his manager in charge of instead of the court peremptorily instructing this store was Charles F. Bartholomew;

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

"that some time prior to the filing of this ac- A demurrer to this answer was overruled tion. the defendant conspired with the said and thereupon Fennell filed the following Charles F. Bartholomew to wrongfully and reply: unlawfully deprive plaintiff of goods and mer- “The plaintiff denies that when he received chandise belonging to him which were in said the sum set up in defendant's amended answer, drug store. He states that in compliance or that when he received any sum, he accepted

such sum or sums. in full payment or satiswith said conspiracy he, with the assistance faction, or any payment or satisfaction, of and knowledge of the said Charles Bartholo- any demands of loss or damage sustained by mew, unlawfully and wrongfully removed him by reason of the acts of defendant as set

up by him in his petition or amended petition; and appropriated to his own use goods and denies that said claims or demands set up in merchandise belonging to this plaintiff to the his petition or amended petition were included value of $1,000. Wherefore he prays for in the claims or demands referred to in his rejudgment against defendant for the suim of ceipts to Charles F. Bartholomew; denies that

he has received as compensation for the dam$1,000.” After this, Fennell filed an amended ages set out in his petition a sum more than petition merely for the purpose of exhibiting, equal to the full amount claimed by him, or in an itemized statement, the character and has received any sum as compensation therefor; quantity of the different articles alleged to fendant from the claims set forth in his petition,

denies that he has released or discharged the dehave been taken from his store by Bartholo- He states that the said writing to Charles F. mew. In his answer, as amended, Fechter Bartholomew was a release to him for property denied all the allegations of the petition, as him from plaintiff while in the employ of plain

and money wrongfully and feloniously taken by amended, and further set up that a few days tiff, and that this defendant was not a party to after the petition was filed Fennell and Bar- said wrongful taking or known in the transactholomew executed and delivered, each to the tion.” other, the following writing:

Thereafter the court entered an order re“Know all men by these presents: That C. R. citing “that the affirmative matter in the Fennell and Charles F. Bartholomew do hereby answer presents a complete defense to the acsettle all matters in controversy between them tion and that by the reply is an insufficient as follows: That for and in consideration of the sum of $652.88 cash paid by Charles F. response thereto," and then adjudged that Bartholomew to C. R. Fennell and the transfer the petition be dismissed. So that the only by Helen Bartholomew, wife of Charles F. question upon this appeal is, Did the answer Bartholomew, of all the money deposited in her present a complete defense to the action, name in the Ideal Savings Loan & Building and was the reply an insufficient response Association, and the Model Building & Loan Association, of Newport, Ky., to c. R. Fen- thereto? nell, said C. R. Fennell does hereby acknowl- [1] The petition charged a conspiracy beedge full payment and satisfaction of all claims tween Bartholomew and Fechter to rob Fenand demands of every kind and description against

the said Charles F. Bartholomew, and nell, and that pursuant to this conspiracy, the said C. R. Fennell does hereby release said and with the assistance of Bartholomew, Bartholomew from all such claims and damages. Fechter had stolen goods of the value of $1,And in consideration of the above release on 000. It is therefore plain that, taking the the part of C. R. Fennell the said Charles Bartholomew acknowledges full and complete satis- averments of the petition as true, Bartholofaction of any_claim or claims he may have mew and Fechter were jointly and severally against C. R. Fennell for any action taken by liable to Fennell for the loss occasioned by him or things spoken by him against the said their joint wrongdoing as alleged in the Charles Bartholomew. Witness the hand of C. R. Fennell and Charles F. Bartholomew to petition. If the facts set out in the petition this and a duplicate thereof this 25th day of were true, Fennell could have sued BartholSeptember. C. R. Fennell. C. F. Bartholo- | omew and Fechter jointly, or he could have mew."

sued either of them separately, and recovAfter averring that Bartholomew had paid ered from them, either separately or jointly, to Fennell, in satisfaction of the conditions the full amount of damage he sustained. and obligations of the writing, $1,588, They were joint wrongdoers. averred:

[2] Turning now again to the writing be“That said C. R. Fennell accepted said sum tween Fennell and Bartholomew, and reading in full payment and satisfaction of all claims the same in connection with the reply, it is and demands of every kind and description apparent that the settlement between Fenagainst the said Chas. F. Bartholomew and re-nell and Bartholomew included in whole or leased said Bartholomew from all such claims and damages sustained by the said C. R. Fen- in part, it is not material which, the loss nell; that said C. R. Fennell accepted said sum and damage that Fennell had suffered on in full payment and satisfaction of any and all account of the wrongdoing of Fechter and demands of loss and damage sustained by said Bartholomew pursuant to the conspiracy C. R. Fennell by reason of the facts set out in the plaintiff's petition and amended petition; between them to defraud Fennell. It is true that said claims and demands set out in said that in the reply it is stated that the writpetition and amended petition were included ing was only a release to Bartholomew for in these claims and demands referred to in said writing; that thereby the said plaintiff, the value of the property wrongfully taken C. R. Fennell, has received as compensation for by him, but this allegation does not subthe damages set out in said petition a sum tract anything from the purpose of the

;) that thereby the said plaintiff has released and writing which was to release Bartholomew discharged this defendant from the claims set from further liability on account of the

*

consideration of the payment by Bartholo-, may sue any one or all, at his election; but mew of $1,588.

when he once receives satisfaction for the inStated in perhaps simpler form, it may feasors, he is barred from proceeding against the

jury done him from one or more of the tortbe put this way:

Fennell had a claim other joint tort-feasors. This is upon the idea against Fechter and Bartholomew growing that he is only entitled to one satisfaction, and out of their joint wrongdoing to his damage, to avoid his getting more than one compensation and in consideration of a stipulated sum states which hold that any satisfaction from a

for his injury. There are authorities in many paid by one of the wrongdoers he released release of one joint tort-feasor releases all. him from further liability. Now did this

The sole reason given in these opinrelease, in the manner stated, of one wrong. vent the injured party from receiving more than

ions for the rule as stated is that it is to predoer release the other wrongdoer, or, in

one compensation or satisfaction for his injury. other words, did it satisfy the cause of ac- We are unable to understand why à part sattion that Fennell originally had against both isfaction and release of one tort-feasor can be of them jointly and severally? In the con- for damages, and operate as a bar to his cause

considered as complete satisfaction of his claim sideration of this question, we do not think of action against the other tort-feasors. There the circumstance that Fennell may have had can be no good reason for this. The collection a larger claim for damages against Bartholo- of a part of satisfaction from one tort-feasor

” mew than he had against Fechter affects is a benefit to the others.” the merits of the case either one way or the

This case, while it distinctly recognizes other, because, assuming that the wrongdo- the general rule that where a person who has ing was pursuant to a conspiracy, Fennell been injured by the act of joint tort-feasors could have recovered from either of the receives satisfaction for the injury done him conspirators the full amount of his loss, al- from one or more of the tort-feasors he is though it appears that he only sought to barred from proceeding against any of the recover from Fechter $1,000, while he re- others, also lays down the rule that when ceived from Bartholomew $1,588, but he it clearly appears that the payment made bv could have recovered from Fechter or Bar- one of the joint tort-feasors was only in part tholomew either or both $2,588, if his loss satisfaction of the claim against them, and by reason of the conspiracy amounted to as only a release of the one making the paymuch.

ment the satisfaction received from this ope Coming, now, to the law applicable to the will not be deemed a satisfaction of the record before us, an instructive case is Louis- cause of action or claim for damages against ville & Evansville Mail Co. v. Barnes, 117 the other arising out of the joint wrongdoing, Ky. 860, 79 S. W. 261, 25 Ky. Law Rep. and we are not disposed to depart from this 2036, 64 L. R. A. 574, 111 Am. St. Rep. 273. ruling or to extend it further, although there In that case the administrator of Barnes sued is much conflict in the cases on the subject the Louisville & Evansville Mail Company, of the effect of accepting satisfaction from and the Marsden Company, charging that one wrongdoer, as may be seen by the authe death of his intestate was caused by the thorities cited in the case of Abb ý. Northern joint and concurring negligence of these two Pac. Ry. Co., 28 Wash. 428, 6 Pac. 954, 58 companies, although the negligence grew out L. R. A. 293, 92 Am. St. Rep. 864, and the exof separate acts committed by each of them tensive note to this case. See, also, Dwy v. independent of the other. After a suit had Connecticut Co., 89 Conn. 74, 92 Atl. 883, L. R. been filed by the administrator against both A. 1915E, 800, and Thomas v. Maysville St. of them to recover damages for his intestate, Ry. Co., 136 Ky. 446, 124 S. W. 398, 136 Am. the Marsden Company settled the cause of St. Rep. 267. Adopting, then, as correct the action against it by the payment of $1,000, principal announced in the Mail Company which was credited upon a judgment for Case, it will be seen that the court put its $2,000 that had been rendered against the decision distinctly upon the ground that the mail company.

The mail company prose- payment made by the Marsden Company as cuted an appeal from the judgment against shown by the evidence was accepted as it, which had been credited by the amount only part satisfaction, and a release of the paid by the Marsden Company, and the ques- Marsden Company only. Accordingly, we are tion before this court upon the appeal was brought directly to the question whether the whether this operated as a release of the payment by Bartholomew was only in part mail company.

In disposing of the case, satisfaction of the claim Fennell had against and holding that it did not release the mail Bartholomew and Fechter, and only intendcompany from its liability, the court said:

ed to release Bartholomew without affecting "Our opinion is that, if the appellee had ac

any cause of action Fennell might have cepted this $1,000 in satisfaction of his cause against Fechter, and this question must be of action or claim for damages, then it would determined by the writing entered into behave operated as a release and a bar to any tween Fennell and Bartholomew, because other proceeding against appellant on account thereof. But it is shown by the proof without there is no effort to show any mistake in contradiction that it was accepted as only part this writing, or that it did not express the satisfaction, and a release of the Marsden Com- true intent of the parties. pany, but not in satisfaction of his cause of action and claim for damages. It is

Turning now again to this writing, we find every kind and character against Bartholo- 14. EXECUTORS AND ADMINISTRATORS O130(2) new, and released him from further liabili

a universal rule of law that joint tort-feasors are jointly that Fennell acknowledged full payment and and severally liable to the injured party. He satisfaction of all claims and demands of

203 S.W.456

-RECOVERY OF LAND. ty growing out of any claims or damages. recovery of intestate's land unless as adminis

An administratrix has no right of action for Nowhere in the writing does it appear that tratrix she has an interest therein, the land the settlement with Bartholomew was only becoming property of the heirs and not of perin part satisfaction of the claim against sonal representative. Bartholomew and Fechter, or only intended 5. JUDGMENT Cw343–VACATION-EFFECT ON

RIGHTS OF PARTIES. to release Bartholomew without affecting the

A judgment setting aside a prior judgment right of Fennell to pursue Fechter, and when in same action will not be vacated where vacaFennell, in the writing, ackuowledged full tion will not affect the interests of the parties

thereto. satisfaction of all claims and demands growing out of their joint wrongdoing that he

Appeal from Circuit Court, Madison had against Bartholomew, this necessarily County. satisfied all claims and demands that he had Action by Laura E. Francis and others against Fechter growing out of the same against the Richmond Mining Company and transaction, because Bartholomew and Fech-Central Coal & Iron Company, in which ter, in this matter, were one person, and in the plaintiff named, after joining as plainthe absence of express reservation he could tiff, filed

an

answer and cross-petition. not settle with one of them without settling From the judgment plaintiff named and dewith the other. The wrongdoing of Barthol- fendant Central Coal & Iron Company apomew was not separated in the writing from peal. Upon subsequent rendition of another the wrongdoing of Fechter, and therefore we judgment in same case purporting to be by think that the settlement made with Bar- agreement of parties and setting aside first tholomew was a satisfaction of whatever judgment, the plaintiff named

plaintiff named filed an claim Fennell had against both Bartholomew amended petition in equity, praying that and Fechter growing out of the same wrong- agreed judgment be vacated, and from judgdoing.

ment thereon dismissing petition and from [3] There is yet another view of the matter first judgment filed plaintiff named appeals. that should be noticed. All the authorities Dismissed All the authorities Dismissed as to the Central Coal & Iron

& agree that where a payment is made by one Company, and judgment dismissing proceedof two joint wrongdoers, although it is not ings to vacate agreed judgment affirmed as accepted in satisfaction of the cause of ac- to other appellee. tion or the claim against all of them, the R. S. Crawford, of Lexington, and Fears & payment so made must go as a credit on the Fears, of New Castle, for appellant. Trabue, claim against the others. Now, if we should Doolan & Cox and J. Blakey Helm, all of apply that rule to this case, the claim of

Louisville, and John C. Chenault and Fennell sued on would be extinguished by nam & Burnam, all of Richmond, for appelthe payment made by Bartholomew, as it

lees. amounted to $588 more than the claim asserted by Fennell against Fechter.

HURT, J. The appellant, Laura E. FranWherefore the judgment is affirmed.

cis and others, who were stockholders in the Richmond Mining Company, instituted this suit against the Central Coal & Iron Com

pany, which was also a stockholder, for a (181 Ky. 21)

dissolution of the first-named company, and FRANCIS v. RICHMOND MINING CO.

a sale of its assets and a division of the proet al.

ceeds of the sale of the assets in accordance (Court of Appeals of Kentucky. June 7, 1918.) with the respective interests of the stock

holders. The petition, among other things, 1. APPEAL AND ERROR Cw113(2) – VACATED averred that of a certain tract of land, which JUDGMENT.

Where a judgment is rendered setting aside was situated in Muhlenberg county, the lea prior judgment in same case, an appeal will gal title had been conveyed to Lewis Frannot lie from such prior judgment until the judg- cis, W. B. Smith, C. J. Bronston, and A. B. ment setting it aside is vacated. 2. JUDGMENT 399 -- PROCEEDINGS TO VA-vested in the above-named parties as trus

Lyman, but that the legal title thereto was CATE-ADVERSE PARTIES.

A judgment setting aside a prior judgment tees for the corporation. The further allein same action remains valid until vacated by gation was made that the Central Coal & proceedings to which the adverse parties in in- Iron Company had had the possession and terest are made parties,

use of all the real property of the corpora3. APPEAL AND ERROR 327(4) - PROCEED- tion sought to be dissolved for a considerable INGS TO VACATE

JUDGMENT ADVERSE PARTY.

number of years and it was proposed to Where an alleged agreed judgment is render- make it liable to the stockholders for the ed vacating a prior judgment in same action, rents and profits. The appellant, after joinand proceedings are brought to vacate the agreed ing in the petition as plaintiff in her own judgment, an appeal from judgment dismissing proceedings will not lie as against an adverse right, thereafter filed an answer and crossparty not made a party to such proceedings. petition, in which she claimed to be the

r

owner in her own right of 80 shares of the , and prayed an appeal from the first judgcapital stock of the Richmond Mining Comment rendered on May 28, 1910, and from pany, and that as administratrix of Lewis the one of October 11, 1915. Francis was the owner of an undivided one- [1-3] The Central Coal & Iron Company, fourth interest in a tract of land of which having been summoned to answer this appeal, Francis, Smith, Bronston, and Lyman had has made a motion to dismiss the appeal as held the legal title, and denied that her in- to it. An appeal cannot lie from the first testate held the interest in the land as trus- judgment rendered on May 28, 1910, because,

The Central Coal & Iron Company filed it having been vacated and set aside by the an answer, counterclaim, and cross-petition, second judgment rendered on that day, it does in which it claimed to be the sole owner of not exist, until the judgment which set it the tract of land. On the 28th day of May, aside is vacated. The latter judgment re1910, the court rendered a judgment to the mains valid and binding until vacated in the effect that the land was owned by the Rich- manner provided by law. In a proceeding to mond Mining Company, and that it should vacate it, it is necessary to make the adverse be sold for the purpose of winding up the parties in interest parties to the proceeding. concern and liquidating its affairs. The ap- If grounds for a new trial are discovered pellant and the Central Coal & Iron Coin- after the term at which the judgment was pany excepted to the judgment, and prayed rendered, relief can be obtained by a petition an appeal to this court, which was granted. filed for that purpose, but to answer which

SecAfter the entry of the above judgment, the adverse party must be summoned. and on the same day, another judgment was tion 344, Civil Code. To vacate or modify a rendered in the action, which purported to judgment because of a clerical misprision, a be done upon and by agreeinent of all the motion must be made for that purpose, but parties. In this judgment it was recited the adverse party must have notice of the mothat it was agreed that the tract of land, in tion. Section 519, Civil Code. To vacate or which appellant claimed an interest, was modify a judgment upon the other grounds the property of the Richmond Mining Com- provided in subsections 4, 5, 6, 7, and 8 of secpany, and that Francis, Smith, Bronston, with the clerk, seeking the relief, and the ad

tion 518, Civil Code, a petition must be filed and Lyman held the legal title, as trustees, verse party must be summoned. Section 520, for the corporation, and that all the shares Civil Code. An appeal does not lie against of stock in the company, including those owned by appellant, be transferred to the not a party to the proceedings in which the

one from a judgment when such party was Central Coal & Iron Company, and that it

judgment was rendered. The Central Coal & should thereby be the owner of all the prop. Iron Company not having been made a party erty of the Richmond Mining Company, that to the proceeding in which it was sought to the answers and cross-petitions of the Cen-vacate the agreed judgment of May 28, 1910, tral Coal & Iron Company and the appellant and in which the judgment appealed from be withdrawn, and that the first judgment be

was rendered, and in which the judgment of set aside and held for naught; and the mas- October 11, 1915, was rendered, the appeal as ter commissioner of the court was directed to the Coal & Iron Company must be disto convey the lands mentioned to the Cen

missed. tral Coal & Iron Company.

[4,5] The other appellees were parties to Subsequently, on the 23d day of Septem- all three of the judgments, and make no obber, 1911, the appellant in her own right fil- jection to the agreed judgment of May 28, ed in the clerk's office a pleading, which 1910. The interests transferred by them to was denominated an "amended petition in the Central Coal & Iron Company, in the equity,” otherwise having the style in which agreed judgment are separate and distinct the foregoing judgments were rendered, and interests from the interest claimed by appelprayed that the foregoing agreed judgment lant, in this, that a specific number of shares be vacated upon the ground that it was en-of the capital stock is transferred by them to tered without her knowledge or consent, and the Coal & Iron Company, and the same apthat she had learned of its rendition imme- pears to have been done by the appellant. In diately before the filing of the paper. There- the action, which resulted in the first judgafter, on August 7, 1912, and April 3, 1913, ment of May 28, 1910, the appellant claims to amendments to this pleading were filed. All have been the owner of an interest in the land of the parties to the judgments of May 28, as the administratrix of Lewis Francis. It 1910, or their representatives were either is very clear that as such she cannot mainsummoned or entered their appearances to tain an action for the recovery of the land, the amended petitions, except the Central as it would be the property, not of the perCoal & Iron Company, which does not seem sonal representative, but of the heirs of Lewis to have been brought before the court in Francis, and she alleges no reason for an any way. On October 11, 1915, the action interest in it as a personal representative. In was submitted for trial, and judgment upon the agreed judgment of May 28, 1910, the the amended petition in equity and its only property of which she was the owner, amendments, and the court adjudged that which was transferred to the Central Coal & they be dismissed. The appellant excepted | Iron Company, was 80 shares of the capital

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