McLemore v. Sebree Coal & Min. Co.

• Decision Date: 22 September 1905
• Citation: 88 S.W. 1062,121 Ky. 53
• Parties: McLEMORE et al. v. SEBREE COAL & MINING CO. et al.
• Court: Kentucky Court of Appeals

88 S.W. 1062

121 Ky. 53

McLEMORE et al. v. SEBREE COAL & MINING CO. et al.

Court of Appeals of Kentucky.

September 22, 1905

Appeal from Circuit Court, Webster County.

"To be officially reported."

Action by Nancy B. McLemore and others against the Sebree Coal &amp Mining Company and another. From a judgment dismissing the petition, plaintiffs appeal. Reversed.

R. L Greene, Bourland & Hunt, Proctor & Herdman, and Jno. L Dorsey, for appellants.

C. W Bennett, Barker & Barker, and Gordon, Gordon & Cox, for appellees.

SETTLE J.

This action was instituted in the Webster circuit court against appellee the Sebree Coal & Mining Company by the appellant Nancy B. McLemore, widow of Thomas J. McLemore, deceased, and their eight children (six of them infants, suing by their mother as next friend), to recover $25,000 damages for the death of the husband and father from a fall in appellee's mine shaft, alleged in the petition to have been caused by its gross negligence; the decedent being at the time an employé of appellee. In addition to stating a cause of action for the death of Thomas J. McLemore, the petition further avers in substance that after his death appellee R. L. Claxton was appointed, gave bond, and duly qualified as administrator of his estate; that his appointment and qualification as administrator were procured by appellee with the wrongful and fraudulent intent to protect itself from liability for damages for its negligence in causing the death of Thomas J. McLemore; that Claxton was at the time of his appointment and qualification, and is now, in the employment of appellee, and has entered into collusion with it to prevent suit against it for the death of the decedent, and has refused to sue appellee for his death, though requested by appellants to do so; that he also refused to resign his administratorship with the fraudulent intent to defeat appellants' claim and obstruct their suit, for which reasons he was made a party to the action, and joined with appellee the Sebree Coal & Mining Company as a defendant. The appellees filed a special demurrer to the petition upon the ground of alleged misjoinder of parties, want of capacity in the appellants to sue, and want of jurisdiction of the parties by the court. The demurrer was sustained by the lower court. Appellants failing to plead further, the petition was dismissed, and of that judgment they now complain.

The demurrer was sustained upon the ground that the action could not be maintained by the widow and children of the decedent but should have been brought, if at all, by the administrator alone. It is insisted for appellees that the right to recover damages for the death of a person resulting from the negligence of another is confined by section 241, Const., section 6, Ky. St. 1903, and section 21, Civ. Code, to the personal representative of the decedent, and that by the provisions of section 3882, Ky. St. 1903, he alone may "compromise and settle any claim or demand for damages growing out of injury to or the death of the decedent," and...