Chesapeake & O. Ry. Co. v. Case

• Decision Date: 28 April 1914
• Citation: 158 Ky. 594,165 S.W. 968
• Parties: CHESAPEAKE & O. RY. CO. v. CASE.
• Court: Kentucky Court of Appeals

165 S.W. 968

158 Ky. 594

CHESAPEAKE & O. RY. CO. v. CASE.

Court of Appeals of Kentucky.

April 28, 1914

Appeal from Circuit Court, Pike County.

Action by Lilburn Case, by next friend, against the Chesapeake &amp Ohio Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. M York, of Pikeville, for appellant.

J. S Cline, of Pikeville, for appellee.

NUNN J.

Lilburn Case, a boy about 14 years of age, instituted this action by Henry Case, his father and next friend, suing to recover of appellant $1,500 for personal injuries. It is alleged that in a rude, insulting, and boisterous manner he was ejected from appellant's passenger train while same was in motion, and that as a result he fell 10 or 15 feet down a steep embankement, bruising his knee, and receiving some other minor personal injuries. On trial in the lower court the jury awarded appellee $500 in damages.

Since the grounds of reversal urged are, in the main, technical, it is unnecessary to enter into a detailed statement of the facts proven. Appellant's chief objection is that the plaintiff has not legal capacity to sue, and that there is a defect of parties plaintiff, or, to quote from its brief: "The suit is not in the name of the infant, Lilburn Case, the party injured; but is in the name of Henry Case, the father of Lilburn Case." The caption of the petition shows the plaintiff to be "Lilburn Case, by his father and next friend, Henry Case." While it is true that the body of the petition begins, "The plaintiff, Henry Case, who sues, etc.," still throughout the petition it appears that the infant was treated as the real plaintiff. This expression frequently occurs, "the plaintiff and his father." The cause of action being in the infant, it should be brought in his name by his next friend. I. C. Ry. v. Head, 119 Ky. 809, 84 S.W. 751, 27 Ky. Law Rep. 270. The caption meets this requirement, and from the body of the petition no one can mistake its purpose to have a recovery for the infant, and for injuries received by him. The appellee filed a general demurrer. This was overruled, and no objection was made to the ruling; thereupon appellee answered by controverting the alleged grounds of recovery. If the petition was bad, it was for defect of parties, and this can only be reached by special demurrer. This appellant did not file. There is therefore no merit in this objection.

Appellant's next objection is to...