Hardwick v. Franklin

• Decision Date: 08 March 1905
• Parties: HARDWICK v. FRANKLIN.
• Court: Kentucky Court of Appeals

85 S.W. 709

120 Ky. 78

HARDWICK v. FRANKLIN.

Court of Appeals of Kentucky.

March 8, 1905

Appeal from Circuit Court, Hopkins County.

"To be officially reported."

Action by William A. Hardwick against John R. Franklin. From a judgment for defendant, plaintiff appeals. Affirmed.

Gordon Gordon & Cox, for appellant.

Ruby Laffoon and Lee Gibson, for appellee.

HOBSON C.J.

Appellant Hardwick, while driving over a bridge on one of the public roads of Hopkins county, was injured by the bridge falling as he alleged, by reason of the gross negligence of appellee Franklin, while acting as special commissioner of the fiscal court, in failing to make the bridge reasonably safe, and leaving it in a defective condition. He filed this suit to recover of Franklin for the injury. The defendant filed an answer traversing the allegations of the petition, and afterwards filed a general demurrer to the petition, which was sustained by the court; and, the plaintiff declining to plead further, his petition was dismissed, and he appeals.

The orders of the fiscal court, a copy of which was filed with the petition, were as follows:

"Hopkins County Fiscal Court, April 5, Regular Term, 1900. Hon. John G. B. Hall, P.J. Ordered that the sum of $75 be, and the same is hereby, appropriated for the purpose of building a bridge over Lick creek, on Madisonville and Charlestown Road, and J. R. Franklin appointed commissioner; same payable out of the county levy for the year 1900. John G. B. Hall, Judge.

"Hopkins County Fiscal Court. Regular Term, October 19, 1900. Hon. John G. B. Hall, P.J. J. R. Franklin made written report as commissioner to build a bridge over Lick creek, on Madisonville and Charlestown Road, near T. G. Chapel's; showing that said work had been done by E. Williams at a cost of $40; that being $35 less than the amount appropriated for said purpose at the last April term of this court; leaving the said balance in the hands of the sheriff, unexpended. Ordered, that court adjourn. John G. B. Hall, Judge."

It will be observed that by these orders the fiscal court appropriated $75 for the building of the bridge, and appointed Franklin commissioner to execute the order; that at the next term he reported that the work had been done by E Williams at the cost of $40, leaving $35 of the appropriation unexpended. It will thus be seen that Franklin was commissioner to let out the work and accept it after it had been done by Williams. Section 4320, Ky. St., relating to the appointment of commissioners by the fiscal court, is as follows: "The fiscal court may appoint a special commissioner to let out and superintend the construction or repairing of any bridge or bridges and fix his compensation therefor: provided, however, that the supervisor shall not be liable for any defects or failure in regard to...