Gregory v. Illinois Cent. R. Co.

• Decision Date: 11 May 1904
• Citation: 80 S.W. 795
• Parties: GREGORY v. ILLINOIS CENT. R. CO.
• Court: Kentucky Court of Appeals

80 S.W. 795

GREGORY v. ILLINOIS CENT. R. CO.

Court of Appeals of Kentucky.

May 11, 1904

Appeal from Circuit Court, Marshall County.

"Not to be officially reported."

Action by T. W. Gregory against the Illinois Central Railroad Company. From a judgment dismissing the petition, plaintiff appeals. Affirmed.

Hendrick & Miller, for appellant.

Reed &amp Oliver, Pirtle & Trabue, and J. M. Dickenson, for appellee.

BARKER J.

Appellant's son Joseph W. Gregory, an infant 16 years of age, was run over and instantly killed by an engine and train of cars operated by appellee's employés while he was attempting to cross its tracks at a public crossing in Gilbertsville Marshall county, Ky. This action was instituted by the father to recover of appellee damages in the sum of $2,000 for the loss of his son's services by reason of the killing from the time of his death until he reached the age of 21 years. It is conceded that this action is not based upon any statute authorizing it, but upon the common-law right of the father to his infant son's services, and the remedy given for their deprivation. The petition contains the usual allegations of negligence in such actions. A general demurrer was sustained to the petition, and, appellant declining to amend, it was dismissed, from which judgment this appeal is prosecuted.

The ruling of the trial judge in sustaining the demurrer was correct. "The common law allowed of no remedy, by way of a civil action, for an injury causing the death of a human being. Such injury must necessarily precede death, and the law did not allow any cause of action for an injury to the person to survive him. The husband or master of the deceased was not allowed to sue, because the only damage recognized by the law was the loss of service during the lifetime of the servant, and the death of the servant therefore worked no injury to the master of which the law could take notice. And if the act causing death amounted to a felony, the general rule of the common law forbidding any civil suit upon a felony would alone have sufficed to exclude a claim for damages. Whatever may be said of these arguments, the conclusions thus reached formed a settled doctrine of the common law. No one, whether as executor, master, parent husband, wife, or child, or in any other right or capacity could maintain an action for damages on account of the death of a human being." Shearman & Redfield on Negligence (5th...