City of Louisville v. O'Donaghue
| Decision Date | 03 February 1914 |
| Parties | CITY OF LOUISVILLE v. O'DONAGHUE et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.
Action by the City of Louisville against Rt. Rev. Denis O'Donaghue and others. From a judgment dismissing the action, plaintiff appeals. Affirmed.
Leon P Lewis and Pendleton Beckley, both of Louisville, for appellant.
O'Doherty & Yonts, of Louisville, for appellees.
In 1899 one Leo Keher was injured while riding a bicycle on a street in the city of Louisville, and, to recover damages for the injuries sustained, he brought suit against the city and other parties, and recovered judgment against the city, which judgment was satisfied in April, 1904, by the payment to Keher of the amount thereof. In 1912 the city brought this suit against the appellee, the Catholic bishop of Louisville seeking to recover from him, individually and as trustee, the amount of the judgment paid Keher.
The petition as amended charged in substance that the accident to Keher was caused by his coming in contact with some stone and mortar that had been placed in the street by Meinrad S Leinert, trustee, his agents and servants, who had negligently failed to protect the material by guards, or barrier, or other sufficient means to give notice of its presence. It was further alleged that Leinert, as trustee for the Catholic Order of Franciscan Fathers, had obtained a permit from the city to erect a building in which the material Keher collided with was being used; that Leinert, as trustee of the order, conveyed the property to Bishop O'Donaghue, as trustee; and that Bishop O'Donaghue, as trustee, has since held the property in the same manner and for the same purpose that it was held by Leinert, the only change made in the status of the title being the name of the trustee.
To the petition as amended, a demurrer was sustained, and, declining to plead further, the action was dismissed, and this appeal prosecuted.
Much is said in briefs of counsel for both parties on the subject whether or not the statute of limitation presents a bar to the prosecution of this action. We have no doubt that the action was barred by the statute. It grows out of the implied obligation of the alleged negligent property owner to indemnify the city for the loss it sustained on account of his negligence. Being an implied obligation, it falls...
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