Everett v. Farmers Bank & Trust Co.
| Decision Date | 13 February 1948 |
| Citation | 209 S.W.2d 737,307 Ky. 48 |
| Parties | EVERETT v. FARMERS BANK & TRUST CO. |
| Court | Kentucky Court of Appeals |
Rehearing Denied April 23, 1948.
Appeal from Circuit Court, Nelson County; L. B. Handley, Judge.
Action by Lillian B. Everett against Farmers Bank & Trust Company to recover for alleged misconduct, negligence, etc., of defendant while serving as plaintiff's committee. From a judgment of dismissal, plaintiff appeals.
Judgment affirmed.
Ernest N. Fulton, of Bardstown, for appellee.
This action was filed in the Nelson circuit court by the appellant against appellee, her former committee, by which she sought to recover from defendant judgment for $50,000 for alleged misconduct, negligence, misfeasance and nonfeasance on the part of the defendant while it was serving as her committee. She was adjudged incompetent to manage her property, and defendant was appointed her committee in 1935. In 1941, another inquisition restored plaintiff and the committee made and filed a settlement of its actions as such which was confirmed.
Plaintiff states in an affidavit filed in this court on September 20 1947, six months after her appeal was filed, in which she stated that she filed what she designates as a 'surcharge' of the settlement made by appellee which was discussed by her and her attorney in the presence of the county judge 'but no action was taken so far as the appellant has been informed.' Appellant at that time had been restored to her capacity of managing her property and affairs generally. According to her affidavit she abandoned whatever relief she sought by her alleged 'surcharge' of her committee's report by not procuring judgment thereon. Furthermore, defendant did not allege in her petition or any amendment thereto the questions she raised in her alleged 'surcharge' of her committee's settlement.
As a background from which this action stemmed, reference is made to the case of Farmers Bank & Trust Co. v. Public Service Co. of Indiana, D. C., 13 F.Supp. 548, the opinion being written by Judge Elwood Hamilton, then judge of the Federal District Court of Western Kentucky; and to the opinion of this court in Everett v. Downing, 298 Ky. 195, 182 S.W.2d 232.
Briefly summarized the facts are: That on December 3, 1927, appellant while a passenger of the Public Service Company of Indiana sustained a more or less severe injury, and on November 21, 1928, she by her attorney, W. W. Downing, filed an action in the Jefferson circuit court against that company to recover damages for her injuries, seeking judgment against defendant therein for $65,000. The defendant therein being a nonresident of this Commonwealth removed the case to the Federal Court for the western district of Kentucky, but before the case was tried it was compromised and settled by the payment by the defendant therein of $20,000 which her attorney collected, and with the consent of his client invested the major portion of it in stock of different private corporations. Such transactions were made during the panic beginning in 1929. Therefore, the stock in which the major part of the compromise amount was invested, declined and became worthless because of failure of the companies issuing the stock.
Appellant then filed an action against W. W. Downing, her attorney, to recover such losses sustained by her, on the ground that he wrongfully invested her funds. But the trial court dismissed her action and she appealed to this court, and we affirmed that judgment.
On February 11, 1935, an action was filed in the Jefferson circuit court by appellant's committee against the defendant in the original action, in which the compromise settlement was made, in which the plaintiff therein for and on behalf of its ward (appellant here) sought to set aside the compromise settlement made in her original action and to obtain a new trial thereof; but neither the grounds upon which that action was based, nor the prayed for relief appears in this record. At any rate she was unsuccessful in that litigation.
In the instant case plaintiff seeks damages against her discharged committee, because of its failure to properly discharge its duty in protecting her interests because of its negligence...
To continue reading
Request your trial