Director General of Railroads v. Chapman's Adm'x

• Decision Date: 16 June 1922
• Citation: 242 S.W. 365,195 Ky. 364
• Parties: DIRECTOR GENERAL OF RAILROADS v. CHAPMAN'S ADM'X.
• Court: Kentucky Court of Appeals

242 S.W. 365

195 Ky. 364

DIRECTOR GENERAL OF RAILROADS v. CHAPMAN'S ADM'X.

Court of Appeals of Kentucky.

June 16, 1922

Appeal from Circuit Court, Lawrence County.

Action by John Chapman's administratrix against the Chesapeake &amp Ohio Railway Company and the Director General of Railroads. Judgment for the plaintiff, against the Director General after the action was dismissed against the railroad company and the Director General appeals.

Reversed and remanded for another trial.

Kirk &amp Kirk, of Paintsville, and Worthington, Cochran, Browning & Reed, of Maysville, for appellant.

E. C. O'Rear and Wm. L. Wallace, both of Frankfort, and M. S. Burns, of Louisa, for appellee.

CLARKE J.

This action was instituted under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) by the administratrix of John Chapman against the Chesapeake & Ohio Railway Company and the Director General of Railroads, to recover damages for the alleged negligent death of the decedent on July 16, 1918.

Although alleging that the railroad was at the time under the control and being operated by the Director General pursuant to the provisions of the Federal Control Act (U. S. Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919, §§ 3115 3/4a-3115 3/4p), plaintiff averred that the decedent was at the time of his death in the employ of the defendant railroad company, and that the negligence of its agents, servants, and employees, superior in authority to him, caused his death.

The railroad company filed a plea in abatement and motion to dismiss, which were sustained and the action against it was dismissed. Thereupon the Director General filed a demurrer and a motion to require plaintiffs to make the petition more definite and certain, which were overruled. The Director General then filed answer denying simply that the decedent's beneficiaries and dependents were wholly dependent upon him for support and maintenance or that they had been damaged in the sum of $50,000 as alleged in the petition, but admitting that they were partially dependent upon the decedent and that they had been damaged from "the loss of pecuniary benefits resulting from the loss of decedent's support and maintenance" in the sum of $5,000, and offering "to confess judgment herein in the amount of $6,500, in full of plaintiff's demands, and to pay the costs of this action."

The offer to confess was refused by plaintiff, and upon a trial of the single issue as to the extent of the damages a verdict for $25,000 was rendered.

For reversal of the judgment entered thereon against the Director General, he urges:

(1) That the petition did not state a cause of action against him, (2) that the verdict is excessive, and (3) that incompetent evidence for plaintiff was admitted over his objections and exceptions.

1. While it is true that the petition charges that decedent was an employee of, and his death was caused by the negligence of employees of, the railroad company, it further alleges that at the time the railroad was under the control of and being operated by the Director General, who, as we know judicially, was at the time the real employer of decedent, as well as those persons engaged in the operation of the railroad owned by the Chesapeake & Ohio Railway Company whose negligence the petition alleges and the answer confesses caused the death of decedent.

Certainly the petition states a cause of action against the railroad company or the Director General, and the same attorneys who urge for the latter that it does not state a cause against him, upon an insistence for the former that it did this only, procured a dismissal of the railroad company, which they still insist was proper.

If the trial court erred in overruling the demurrer of the Director General, he certainly erred in dismissing the railroad company. We do not think he erred in either instance, since, despite the inapt and contradictory language employed, the petition makes it perfectly plain that the Director General and not the railroad company was the employer of decedent and those responsible for his death, and that he alone is liable for any damages resulting therefrom.

But even if it should be conceded the petition was fatally defective as against the Director General, this defect was effectually cured by his answer and offer to confess judgment for the sum he conceded plaintiff had been damaged.

2. As to whether or not the verdict is excessive, but little need be said, since its size is such that it strikes the mind at first blush as being the result of passion or prejudice upon the part of the jury, unless indeed it may be accounted for by the incompetent evidence that plaintiff was permitted to introduce over the objections and exceptions of the defendant.

Decedent was 49 years of age at the time of his death, with an expectancy of 22 years. He left surviving him a widow and five infant children, the ages of the latter ranging from 2 to 11 years. His education was meager, as was also his earning capacity; but he was a splendid Christian character, attentive and affectionate toward his family, and ambitious that his children should receive the best education he could give them.

At the time of his death he was employed by the defendant as a section laborer, and as such he was earning approximately $60 per month. While he was capable of and had been employed or engaged at times at slightly more remunerative work, the evidence does not indicate that during the 28 years of his majority his average earnings had exceeded, if indeed they had equaled, what he was receiving from the defendant at the time of his death, or indicate a probability that they would exceed greatly, if at all, that amount in the future.

The recovery allowed by the federal act, as interpreted by the Supreme...