City of Louisville v. Hart's Adm'r

Decision Date18 April 1911
Citation143 Ky. 171,136 S.W. 212
PartiesCITY OF LOUISVILLE v. HART'S ADM'R.
CourtKentucky Court of Appeals

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

Action by Edward Hart's administrator against the City of Louisville and another. Judgment for plaintiff, and defendant named appeals. Affirmed.

See also, 142 Ky. 263, 134 S.W. 140.

Leon P Lewis, Clayton B. Blakey, and Huston Quin, for appellant.

Edwards Ogden & Peak, for appellee.

CARROLL J.

Edward Hart, while driving a one-horse wagon on Payne street, in the city of Louisville, was thrown from it in front of a street car and killed by the car. To recover damages for his death, the administrator brought an action against the city of Louisville and the Louisville Railway Company, charging that the accident that resulted in his death was due to the negligence of the city in failing to keep the street at the point of the accident in a reasonably safe condition for public travel, and to the high and dangerous rate of speed at which the street car was running and the negligence in its operation. During the trial, the lower court dismissed the action against the railway company, but the case proceeded against the city, and a judgment was obtained against it for $4,000.

A number of grounds for reversal are presented which we will consider in the order they are stated by counsel for the appellant.

Edward Hart died on the 25th day of August, 1906, and on the 5th day of September, 1906, Christ Schneider, the plaintiff in this action, was appointed administrator of his estate. It appears that Edward Hart left as his only heir at law his father, Patrick Hart, and on the 18th day of September, 1906, the Louisville Railway Company obtained from Patrick Hart the following receipt: "Received of the Louisville Railway Company this the 18th of September, 1906, the sum of one thousand dollars, in full compromise, payment, satisfaction and discharge of all claims and demands which I have against the street railway company, its employés or agents for or on account of any and all damages, injury, expenses or loss which I have sustained by reason of the death of Edward Hart, my son, caused by the alleged negligence of its employés or agents in running a car on or against said Edward Hart." We are informed by counsel that it was the introduction of this receipt by the railway company on the trial that induced the trial judge to dismiss the action as to it. Hart's Adm'r v. Louisville Railway Co., 142 Ky. 263, 134 S.W. 140. But, whatever the cause that influenced the dismissal of the action, it is now the contention of the city that as Patrick Hart, the only heir at law of Edward Hart, and the person to whom any recovery on account of his death would go, settled with one of the joint wrongdoers, this settlement was a satisfaction of all claim for damages against both of them, and therefore a bar to the action against the city as well as the action against the railway company; or, in any event, this sum should have been deducted from any recovery by the administrator against the city. This contention brings up for consideration the question whether or not Patrick Hart had the legal right after an administrator was appointed to settle with the railway company any claim for damages that might have been asserted against it on account of the death of Edward Hart. If he did not have such legal right, then the settlement made by him was not a bar to a recovery against either the street railway company or the city by the administrator, and so it should not be treated as a satisfaction of the claim for damages arising on account of his death against either wrongdoer.

Section 6, Ky. St. (Russell's St. § 11), under which the action was prosecuted by the administrator, and which was enacted in pursuance of section 241 of the Constitution, reads: "Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then in every such case, damages may be recovered for such death from the person or persons, company or companies, corporation or corporations, their agents or servants, causing the same, and when the act is willful or the negligence is gross, punitive damages may be recovered, and the action to recover such damages shall be prosecuted by the personal representative of the deceased. The amount recovered, less funeral expenses and the cost of administration, and such costs about the recovery, including attorney fees as are not included in the recovery from the defendant, shall be for the benefit of and go to the kindred of the deceased in the following order. ***" Then follows a description of the persons to whom the recovery shall go, and the order of precedence in which they are entitled to it. It will of course, be readily conceded that the exclusive right to maintain an action under this section is vested in the personal representative, unless it should be that he refused to bring the action, and then we have no doubt that it might be maintained by those entitled to the recovery. Leach v. Owensboro Ry. Co., 137 Ky. 292, 125 S.W. 708; McLemore v. Sebree Coal & Mining Co., 121 Ky. 53, 88 S.W. 1062, 28 Ky. Law Rep. 25. The personal representative is further authorized by section 3882, of the Kentucky Statutes (Russell's St. § 3913) "to compromise and settle any claim or demand for damages growing out of injury to or a death of a decedent." McFarland v. L. & N. R. Co., 130 Ky. 172, 113 S.W. 82; Leach v. Owensboro Ry. Co., 137 Ky. 292, 125 S.W. 708. As the statute confers upon the personal representative, and no one else, the right to maintain an action in tort for damages resulting from death, and also gives him the authority to settle and compromise any claim for such damages, we are of the opinion that, when a personal representative has been regularly appointed, his authority is exclusive, and the power is lodged in him alone subject to the exception before mentioned to prosecute the action to a conclusion and to settle or compromise the claim. It results from this that neither the beneficiaries of the recovery nor any other person can divest the personal representative of this statutory authority. If the beneficiary of the recovery could by settling the claim oust the personal representative of his jurisdiction, the effect would be that the beneficiary could control the disposition of the action and strip the personal representative of the power lodged in him by the statute.

The Supreme Court of Iowa in Christie v. Chicago, R.I. & P. R. Co., 104 Iowa 707, 74 N.W. 697, and the Supreme Court of Wisconsin in McKeigue v. Chicago & N.W. R. Co., 130 Wis. 543, 110 N.W. 384, 11 L.R.A. (N. S.) 148, 118 Am.St.Rep. 1038, ruled that a settlement by the beneficiary before the appointment of an administrator would defeat an action by the personal representative; but the right of the beneficiary to settle after the appointment of an administrator, and thereby defeat an action brought by the administrator, was not presented or decided in either of these cases. The Indiana Supreme Court in Yelton v. Evansville & Ind. R. Co., 134 Ind. 414, 33 N.E. 629, 21 L.R.A. 158, held that the beneficiary after suit had been commenced by an administrator could not compromise a claim for damages so as to defeat a recovery by the personal representative. In this state the question is squarely presented for the first time. It was mentioned in Meyer v. Zoll, 119 Ky. 480, 84 S.W. 543, but, not being necessary to a decision of the case, was not disposed of. It may be conceded that the personal representative is merely the trustee of the beneficiary, and that generally the sole beneficiary of a fund may control the disposition of it, and can dictate to the trustee the course he will pursue in reference to it or take the matter entirely out of his hands. But we regard the legislative declaration upon this subject as controlling.

We think there can be no doubt that it was competent for the Legislature to direct what persons might bring, as well as settle or compromise, actions like this, and, as the Legislature has indicated the person, that no other person should in the face of this legislative expression have the right to usurp the authority conferred upon the personal representative. If Patrick Hart had brought an action against the railway company to recover damages for the death of his son, the court upon motion would at once have dismissed it upon the ground that he had no right to maintain it; and yet it is said that he has the right to prevent the only person having authority to institute the action from prosecuting it to a conclusion. There would be little reason for giving the personal representative the exclusive right to institute and maintain an action like this if some other person could defeat his authority by controlling the conduct of the case. Under our statute, the additional reason for denying to a beneficiary the right to settle the claim for damages, and thereby defeat a recovery in an action by the personal representative, exists in the fact that the recovery is charged with certain expenses that the personal representative would be obliged to discharge, but that the beneficiary might not be inclined to pay, and could not be held responsible for. But we do not put our decision that the beneficiary cannot settle the claim and defeat the right of the personal representative upon this ground. We rest it entirely upon the ground that as the statute designates the personal representative as the person who must bring the suit, and who may settle and compromise the demand, no other person can institute the action or settle or compromise it after he has been appointed. We do not hold that the sole beneficiary might not settle before...

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