Babb v. Crescent Amusement Co.

• Decision Date: 01 December 1936
• Citation: 266 Ky. 382,99 S.W.2d 199
• Parties: BABB et al. v. CRESCENT AMUSEMENT CO. et al.
• Court: Kentucky Court of Appeals

99 S.W.2d 199

266 Ky. 382

BABB et al. v. CRESCENT AMUSEMENT CO. et al.

Court of Appeals of Kentucky

December 1, 1936

Appeal from Circuit Court, Warren County.

Action by Herbert Babb and another against the Crescent Amusement Company, and another. From the judgment, the plaintiffs appeal.

Affirmed.

John L Stout, of Bowling Green, for appellants.

Rodes &amp Willock, of Bowling Green, for appellees.

REES Justice.

The Crescent Amusement Company operates a motion picture theater in the city of Bowling Green. About 8 p. m. February 3, 1936 Elmo Babb, a son of appellants, was killed by the accidental discharge of a pistol in the hands of Roy Jewell, and employee of the Crescent Amusement Company. The accident happened on the company's premises. The appelle Leslie H Innes qualified as administrator of the estate of the decedent, and shortly thereafter signed a paper acknowledging the receipt of $150 from the Crescent Amusement Company, in full settlement of all claims against it arising out of the death of Elmo Babb. Thereafter Herbert Babb and Laura Babb, parents of the decedent, brought this action to set aside the settlement on the ground of fraud, and to recover damages in the sum of $10,000 for the death of their son. They alleged that their son, while a patron of the defendant corporation's theater, was shot and killed by one of its employees while in the discharge of his duties in taking up tickets and maintaining order; that the employee had armed himself with a loaded pistol, and that such fact was known to, or by the exercise of ordinary care could have been ascertained by, his employer, and that while in the discharge of his duties he negligently discharged the pistol, inflicting a wound on Elmo Babb which caused his death a few days later. The Crescent Amusement Company's answer contained a traverse, and affirmatively pleaded that Elmo Babb was killed accidentally in its theater while there not as a patron or guest, and without the fault of any of its agents or servants. It was also alleged in the answer that the plaintiffs and their counsel had settled their claim for $150 and had agreed to discharge the defendant from all liability after an investigation of the facts ahd been made, and that the settlement was made in good faith and as a compromise of the disputed question of liability for the death of the decedent, and was agreed to by the plaintiffs with knowledge of all the facts and upon the advice of their counsel. The administrator filed an answer in which he alleged that the settlement was made in good faith. A reply completed the issues, and upon the trial before a jury the circuit court, at the conclusion of plaintiffs' evidence, sustained the defendants' motion for a directed verdict in their favor. The motion was sustained on the theory that Roy Jewell was not acting within the scope of his employment when the accident happened, and that his employer, therefore, was not liable for his negligent act.

The court, in passing on the motion, did not consider the issue raised by the pleadings as to the validity of the settlement. We think the evidence fails to show that the settlement was procured by fraud, but discussion of that question is unnecessary since we have concluded that the ground on which the circuit court based its ruling is sound. Only three witnesses were introduced by the plaintiffs. Herbert Babb's testimony was chiefly directed to the circumstances surrounding the settlement. He was not in the theater when the accident happened, and he knew nothing concerning it. Jesse Ray merely testified that he was in the theater February 3, 1936, and saw Elmo Babb there. The witness left the theater shortly before the accident happened. The only...