Ketterer's Admr. v. State Board of Control, &C.

• Decision Date: 14 January 1909
• Citation: 131 Ky. 287
• Court: Kentucky Court of Appeals
• Parties: Ketterer's Admr. v. State Brd. of Control, &c.

131 Ky. 287

Ketterer's Admr. v. State Brd. of Control, &c.

Court of Appeals of Kentucky.

January 14, 1909.

Appeal from Fayette Circuit Court.

WATTS PARKER, Circuit Judge.

From a judgment of dismissal, plaintiff appeals. — Affirmed.

J. FRANKLIN WALLACE and GEO. DENNY, for appellant.

GOURLEY, REDWINE & GOURLEY and JAS. BREATHITT and CHAS. H. MORRIS for appellees.

OPINION OF THE COURT BY JUDGE NUNN — Affirming.

This action was instituted by appellant against appellees, the Kentucky State Board of Control and J. S. Redwine, superintendent of the Eastern Kentucky Lunatic Asylum, to recover damages for the loss of the life of appellant's intestate by reason of the negligence of the members of the board of control and J. S. Redwine, the superintendent of the asylum. A demurrer was filed and sustained to the petition, and appellant filed an amended petition, which, in substance, contains his real cause of complaint against appellees. It is as follows: "The plaintiff, by way of amendment to his original petition herein, says that he reiterates all the statements made therein, as much so as if copied herein verbatim. He alleges that the defendant J. S. Redwine is a superintendent of the Eastern Kentucky Lunatic Asylum, and that said Redwine, as such superintendent, and the Kentucky State Board of Control for Charitable Institutions, manage and control and employ the servants and agents of the Eastern Kentucky Lunatic Asylum for the Insane, located in the city of Lexington, and that the said defendants discharge said servants and employes upon their own volition. Plaintiff says that defendants, the Kentucky State Board of Control for Charitable Institutions and J. S. Redwine, superintendent of the Eastern Kentucky Asylum for the Insane, knew, or by the exercise of reasonable diligence could have known, of the vicious and outrageous tendencies of the servants who had been employed by them who were in charge of the plaintiff's decedent, Fred Ketterer, at the time of his death, and that the said defendants did know, or by the exercise of reasonable diligence could have known, that the decedent, Fred Ketterer, was badly beaten and maltreated by said employes of the defendant before the 22d day of June, 1906, when he was cruelly beaten and bruised by them as alleged in his original petition, and although the defendants knew, or by the exercise of reasonable diligence could have known, that said servants were mistreating said Ketterer, they still retained them in their employ, and the said Ketterer lost his life through the gross negligence and carelessness of said defendants, all to this plaintiff's damage in the sum of $50,000." To this amendment a demurrer was also filed and sustained, and upon appellant's failure to plead further the court dismissed his action.

This court has several times passed upon similar questions. The policy of the law in this State is to the effect that neither the State nor its officials, such as are sued herein, are liable for the wrongdoing of one acting under them who, by his negligence, causes an injury to be inflicted upon another. All the authorities relieve the State and such officials from responsibility in such cases and place the responsibility upon those persons who commit the acts which are the direct cause of the injury.

Counsel for appellant rely for a reversal chiefly upon the cases of Herr v. Central Kentucky Asylum, 97 Ky. 458, 30 S. W. 971, 28 L. R. A. 394, 53 Am. St. Rep. 414; Central Kentucky Asylum v. Hauns, 64 S. W. 643, 23 Ky. Law Rep. 1016; Hauns v. Central Kentucky Asylum, 103 Ky. 562, 45 S. W. 890, 20 Ky. Law Rep. 246, and Glavin v. Rhode Island Hospital, 12 R. I. 411, 34 Am. Rep. 675. The questions determined in these cases are easily distinguished from the question involved in the case at bar. The first case mentioned was a proceeding to obtain an injunction to prevent appellee from polluting a stream of water which ran through appellant's farm. Of the propriety of this, there can be no doubt. In polluting the stream of water that ran through appellant's farm, appellee decreased the value of the farm, and it amounted to the taking of his property without just compensation and due process of law, and it was an illegal act of the State and the officials in charge of the asylum. The Hauns cases were similar to the first case mentioned, except in the first there was a judgment against the asylum for polluting a stream of water which flowed through his premises, and the second case related only to the collection of the judgment by execution. The only case cited by appellant in which a similar question arose is Glavin v. Rhode Island Hospital, supra. In that case it was held that the hospital was liable to a paying patient for negligent treatment, although the hospital was administered largely as a charity, with income derived mainly from endowments and voluntary contributions. As will be observed, there is a material distinction between that case and the one before us. In that case the...