Hart's Adm'r v. Louisville Ry. Co.

• Decision Date: 14 February 1911
• Citation: 134 S.W. 140,142 Ky. 263
• Parties: HART'S ADM'R v. LOUISVILLE RY. CO. d
• Court: Kentucky Court of Appeals

134 S.W. 140

142 Ky. 263

HART'S ADM'R v. LOUISVILLE RY. CO. d

Court of Appeals of Kentucky.

February 14, 1911

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

Action by Edward Hart's Administrator against the Louisville Railway Company. From a judgment of dismissal, plaintiff appeals. Affirmed.

Edwards Ogden & Peak, for appellant.

Fairleigh Straus & Fairleigh and Howard B. Lee, for appellee.

NUNN J.

Edward Hart was killed by the alleged negligence of the city of Louisville and appellee. An action was instituted for the recovery of damages, and a jury was impaneled to try the case. After appellant's counsel made a statement of the case, the court entered the following order: "At the conclusion of the plaintiff's opening statement to the jury, the defendant Louisville Railway Company moved the court to dismiss the petition herein as to it, to which the plaintiff objected. The court, being advised, ordered said motion be and is sustained, to which plaintiff excepts." There was no bill of exceptions tendered or filed, and we therefore have no means of knowing what was contained in the statement of counsel for appellant, or of ascertaining in any particular the reason for the court's action.

It appears that appellee filed an answer to the petition of appellant, by the first paragraph of which it controverted the allegations of the petition; that by the second it pleaded contributory negligence on the part of Edward Hart and that by the third it set forth a settlement in which it claimed it paid $1,000 to Patrick Hart, the father and only heir of Edward Hart, in full satisfaction of the claim, and pleaded it in bar of appellant's right to recover. It was also alleged in this last paragraph that Christ Schneider was illegally appointed administrator, that he had no right to act as such, that his appointment was made by the county court before two terms had convened after the death of Edward Hart, and that the appointment was not made at the request of Patrick Hart, who had not waived his right to be appointed the administrator. Appellee filed a demurrer to this paragraph, and the court rendered a written opinion in passing upon it, which is filed in the record, in which he decided that the settlement was not a bar to this action that the administrator alone had the right to bring such actions and settle the damages, but overruled the demurrer because of the later...