Blocker v. City of Owensboro

• Decision Date: 14 May 1908
• Citation: 110 S.W. 369,129 Ky. 75
• Parties: BLOCKER v. CITY OF OWENSBORO et al.
• Court: Kentucky Court of Appeals

110 S.W. 369

129 Ky. 75

BLOCKER v. CITY OF OWENSBORO et al.

Court of Appeals of Kentucky.

May 14, 1908

Appeal from Circuit Court, Daviess County.

"To be officially reported."

Action by Clara Blocker against the city of Owensboro and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Little & Slack, for appellant.

J. A Dean and Geo. W. Jolly, for appellees.

CARROLL J.

In 1906 Augusta Dieco, in an action brought by her against the city of Owensboro and J. J. Blocker, the husband of appellant Clara Blocker, to recover damages for personal injuries sustained by obstructions on the sidewalk in the city over which she stumbled and fell, obtained a judgment for $500 and costs. The defendants in that action prosecuted an appeal to this court, where the judgment was affirmed. In 1907 Mrs Dieco, in consideration of the sum of $672 paid her by Clara Blocker, assigned to her the judgment without recourse. Thereupon the appellant, Clara Blocker, brought this suit against the city of Owensboro, setting up the purchase and assignment of the judgment and the fact that she had demanded payment thereof from the city, which was refused, and the further fact that the city had no property subject to execution, but did have in its treasury a sum sufficient to pay the judgment. She asked for a mandamus against the city and the mayor and board of councilmen, who were made parties defendant, requiring them to satisfy the judgment, and, if necessary, that they be compelled to levy a tax to pay the same. In its answer the city set up in substance that J. J Blocker, the husband of Clara Blocker, was the owner of a lot in the city, and that he and his wife reconstructed the building, making additions and improvements thereto, and that while so engaged in the erection of the building they permitted bricks to be placed or fall on the sidewalk, and that Mrs. Dieco stumbled and fell over said bricks, causing the injuries for which she recovered judgment, and that the injuries sustained by her were due to the carelessness and negligence of Blocker and his wife, the appellant; that Clara Blocker had notice of the institution and prosecution of the suit of Mrs. Dieco against the city and Blocker, and, although not a party of record to the action, she was the real party in interest, and voluntarily paid the judgment, and afterwards procured the assignment, which was a mere pretense, and not made in good faith; that the judgment was satisfied and extinguished by the payment, which was made at the request of her husband, J. J. Blocker, and because she had the house in which the brick were used, over which Mrs. Dieco fell, reconstructed and built, and was in fact the owner thereof; and, furthermore, that J. J. Blocker owned ample property out of which an execution upon the judgment could have been collected at any time. In a reply it was denied that appellant and her husband reconstructed or made the improvements on the lot referred to, or were engaged in reconstructing the building, or that the improvements were made for her, except that the building was erected by him at her instance, and she voluntarily furnished the money to pay for same. She denied the other material averments of the answer, and that she paid the judgment at the request of J. J. Blocker, or that the assignment of the judgment was not in good faith, and that the city as between it and J. J. Blocker was primarily liable for the damages. No other pleading was filed, and on motion of plaintiff, now appellant, the action was submitted to the court upon the pleadings, and the exhibit filed with and as a part of the answer. This exhibit consisted of a complete transcript of the record in the action of Mrs. Dieco against Blocker and the city. The court separated its conclusions of law and fact, and found the following facts: (1) That an action was instituted by Mrs. Dieco against the city and Blocker to recover damages; that a trial resulted in a judgment against both defendants, which judgment was affirmed by the Court of Appeals. (2) That Mrs. Blocker, wife of J. J. Blocker, paid the amount of the judgment to Mrs. Dieco, and took an assignment thereof, and afterwards brought this suit; that the house was being erected by appellant, and in the course of the work bricks were negligently placed in a position where they fell and incumbered the sidewalk, and the injuries to Mrs. Dieco were sustained in consequence of this negligence on the part of appellant and her agents; and that she had notice of the suit by Mrs. Dieco, and is chargeable with notice of the result and bound by the judgment. From these facts the court concluded as a matter of law that appellant was concluded by the proceedings had in the case of Dieco against Blocker and the city as fully as if she was a party of the record; that, if the city had paid the judgment, it might have recovered the amount from the appellant on the principle that, when one is compelled by the judgment of a court of competent jurisdiction to respond in damages for the wrongful act or negligence of another, a cause of action arises in favor of the party who...