City of Louisville v. Nicholls

• Decision Date: 23 April 1914
• Citation: 165 S.W. 660,158 Ky. 516
• Parties: CITY OF LOUISVILLE v. NICHOLLS. [d]
• Court: Kentucky Court of Appeals

165 S.W. 660

158 Ky. 516

CITY OF LOUISVILLE v. NICHOLLS. ^[d]

Court of Appeals of Kentucky.

April 23, 1914

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by F. Helen Nicholls against the City of Louisville. From a judgment for plaintiff, defendant appeals. Affirmed.

Pendleton Beckley and Leon P. Lewis, both of Louisville, for appellant.

Furlong Woodbury & Furlong and J. B. Weaver, all of Louisville, for appellee.

NUNN J.

The city of Louisville prosecutes this appeal, and asks this court to reverse the judgment for $350 which F. Helen Nicholls recovered against it. She sued for $5,000, and the jury returned a verdict in her favor for $450, but credited it with the sum of $100 paid to her by I. F. Starks. This credit was pursuant to the instructions of the court.

In September, 1911, while walking along Fourth avenue, she fell over a large stone lying on the sidewalk in front of the Hagan property, which is on the west side of Fourth street near Broadway. This Hagan lot is adjacent to the Starks lot and upon which a large building had just been completed at the time of the injury. The stone was 3 or 4 feet in length, and about 18 inches high. Plaintiff's attention was attracted to a frightened child at the Hagan door. Stopping for the moment to comfort it, and turning to continue her walk down Fourth street, she, in the act of turning, fell over the stone, which she had not seen before. Her injuries were very painful, and she was incapacitated from any sort of work for about six months. The city disputes her right to recover any sum; but, if she has a right of recovery, the amount awarded her is not questioned. This stone had been lying there on the sidewalk, a menace to pedestrians, for as long as a month, and the city either knew of it, or by the exercise of ordinary care could have known of it. Her action in the first place was against the city and I. F. Starks jointly. Against the city it was predicated upon the idea that it negligently permitted the stone to remain on the sidewalk. Against Starks it was alleged that he was the owner of the adjacent property upon which a large building had been constructed, and that Starks, his agents and employés, in excavating for and constructing said building negligently placed the stone on the sidewalk, and left it there. A short time prior to the trial she accepted from Starks $100, and executed a writing releasing Starks from "all claims on account of injuries received by her on account of the fall on Fourth street near the building erected by Isaac F. Starks, and accept said sum in full satisfaction of her claim against Isaac F. Starks." She thereupon had an order entered dismissing her action against Starks, and withdrawing all the allegations of her pleadings with reference to him. The city then filed an amended and supplemental answer, setting up the settlement with Starks. It also alleged that, in consideration of a building permit issued to Starks, Starks executed to it an indemnifying bond whereby he obligated himself to pay all damages occurring on account of excavation made in or obstruction placed upon the sidewalk while engaged in the work of constructing the building. In addition to these, we copy the following allegations: "Defendant states that the obstruction in the highway over which plaintiff alleges she fell, and out of which said alleged accident this cause of action arose, was placed upon the sidewalk of the city of Louisville by those engaged in the work of excavating, or in other work connected with the building on the property owned by said codefendant, Isaac F. Starks." "Defendant states that, by reason of the facts aforesaid, this defendant has a right of action against said I. F. Starks for indemnity for any recovery which the plaintiff might in this action secure against the defendant, city of Louisville, and that, by reason of said facts, the release set out herein is a full and complete bar to the plaintiff's right of action sought in the petition." The court overruled a demurrer to this pleading. It is plain that the appellee accepted $100 from Starks as a satisfaction only of her claim against him, and not in satisfaction of all claims she may have arising out of the accident, or for all the injuries which she received. The city does not seriously dispute this proposition, but claims that a settlement with one tort-feasor who is bound to indemnify his joint tort-feasor bars any right of action against that joint tort-feasor.

On the idea that Starks is obligated to indemnify the city against injury occurring on the sidewalk, the city claims that the rule is not applicable which this court laid down in the case of L. & E. Mail Co. v. Barnes, 117 Ky. 860, 79 S.W 261, 25 Ky. Law Rep. 2036, 64 L. R. A. 574, 111 Am. St. Rep. 273. City of Covington v. Westbay, 156 Ky. 839, 162 S.W. 91, where the court said: "We are unable to understand why a part satisfaction and release of one tort-feasor can be considered as complete satisfaction for his claim for damages and operate as a bar to his cause of action against the other tort-feasor. There can be no good reason for this. The collection of a part satisfaction from one tort-feasor is a benefit to the others. Under the law, there is no right of contribution existing between tort-feasors. The law itself does not look with favor upon wrongdoers. They are unlike obligors in an ordinary contract where the right of contribution is given. The law ought not to be that a release of one tort-feasor by his making a partial satisfaction for the wrongdoing...