Leach, &C., v. Owensboro City Ry. Co., &C.

• Decision Date: 23 February 1910
• Citation: 137 Ky. 292
• Parties: Leach, &c. v. Owensboro City Ry Co., &c.
• Court: Kentucky Court of Appeals

137 Ky. 292

Leach, &c. v. Owensboro City Ry Co., &c.

Court of Appeals of Kentucky.

February 23, 1910.

Appeal from Daviess Circuit Court.

T. F. BIRKHEAD, Circuit Judge.

From a judgment for defendants, plaintiffs appeal. — Reversed.

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WATKINS & BROOKHEAD, J. R. HAYS and SWEENEY, ELLIS & SWEENEY for appellants.

LITTLE & SLACK and MILLER & TODD for appellees.

OPINION OF THE COURT BY JUDGE O'REAR — Reversing.

Clara Gardner, a widow, was run over and killed by one of appellee's electric street cars in Owensboro, in March, 1908. William Alexander, her brother, was on his motion appointed administrator of her estate on April 10, 1908, and on that day settled with the railway company for her death by accepting $250 in full satisfaction. He executed a receipt in full settlement of the compromise. The children of Mrs. Gardner, some of whom were infants, upon learning of the settlement, attempted to repudiate the administrator's act, and brought this suit against the railway company and the administrator, charging the negligent killing of decedent, and alleging that the administrator and the railway company had fraudulently conspired to settle the claim of the estate for less than it was entitled to recover, and that in pursuance of the conspiracy the administrator refused to bring this suit for damages accrued to the estate by the wrongful act of his co-defendant. The answer of the railway company denied its negligence, pleaded the contributory negligence, of the decedent, and relied, too, upon the compromise settlement by the administrator. At the close of the evidence the circuit court directed a verdict for the defendants.

Appellants, the children of the decedent, claimed that the order appointing Alexander administrator before the second term of county court after the death of the intestate was void. Though it may have been erroneous, it was not void. Buckner v. L. & N. R. R. Co., 120 Ky. 600, 87 S. W. 777, 27 Ky. Law Rep. 1009; McFarland's Admr v. L. & N. R. R. Co., 130 Ky. 172, 113 S. W. 82; Spayd v. Brown, 102 S. W. 823, 31 Ky. Law Rep. 438. Under the statute the acting administrator had the lawful right to compromise and settle the claim (sections 3848, 3882, Ky. St. [Russell's St. secs 3878, 3913]), although the order appointing the administrator had been prematurely entered in the county court. McFarland's Admr v. L. & N. R. R. Co., supra. In McLemore v. Sebree Coal & Mining Co., 121 Ky., 53, 88 S. W. 1062, 28 Ky. Law Rep. 25, it was held that, if the personal representative of one killed by the negligence of another refused to bring action against the wrongdoer by collusion, the beneficiaries of the decedent, who under statute are the widow and heirs at law of the decedent (section 6, Ky. St. [Russell's St. sec. 11]), might maintain the action nevertheless, making the administrator a party defendant. Unless there was a compromise of the claim in this case in good faith, then there was not a settlement of it at all. If the administrator, in fraud of the rights of the beneficiaries of the estate of which he had charge, and in collusion with the adverse party, settled the claim against the railway company so as to defeat the action of the real beneficiaries, it may be opened up at the instance of the latter, and the original case tried on its merits. Testing the correctness of the trial court's ruling in giving the peremptory instruction, the evidence for the plaintiffs in its strongest aspect must be considered. If it showed (1) a probable claim against the railway for substantial damages for the destruction of decedent's power to earn money, and (2) that the administrator and the railway company acted not in good faith in the settlement of it, then the case ought to have gone to the jury.

The place of the accident was on Breckinridge street in Owensboro, in a part of the town well built up. Decedent, about 6 o'clock in the afternoon, was...