McMurtry v. Kentucky Cent. R. Co.

• Decision Date: 18 November 1886
• Citation: 84 Ky. 462,1 S.W. 815
• Parties: MCMURTRY v. KENTUCKY CENT. R. Co.
• Court: Kentucky Court of Appeals

1 S.W. 815

84 Ky. 462

MCMURTRY v. KENTUCKY CENT. R. Co.

Court of Appeals of Kentucky.

November 18, 1886

Appeal from Harrison chancery court.

J. Q Ward and L. M. Martin, for appellant, McMurtry. Hargis &amp Eastin and O'Hara & Bryan, for appellee, Kentucky Cent R. Co.

HOLT J.

The appellant, Frank McMurtry, obtained a judgment against the Kentucky Central Railroad Company for a personal injury resulting from the negligence of its employes in the management of one of its trains upon which he was a passenger. His attorney asked the company, by letter, if it desired to pay it without an execution, offering, in such an event, to furnish a statement of the amount. An affirmative answer being returned, he did so, and in it embraced interest upon the judgment from the date of its rendition, amounting to $1,491.06. By its terms the judgment did not bear interest. Payment being delayed, the attorney again notified the company by letter that an execution would issue in the event of non-payment, and thereupon payment was made in accordance with the statement. It now seeks to recover back the interest, upon the ground that it was paid through mistake of law.

If the appellant, McMurtry, had no right to it, and payment was made by the company under a mistaken belief to the contrary, then, upon the facts presented, neither good morals nor law sanction its retention by him. It is clear that it was not the result of a compromise of a doubtful claim, nor was there any agreement to pay interest in consideration of a delay of execution. Where the parties regard a question of either law or fact as doubtful, and to avoid litigation, and by way of compromise, payment is made, then no recovery can be had; but in the case now before us no question was raised at the time as to the right of the claimant to interest, and if in fact he was not entitled to it, then it is manifest that it was paid under a mistake of law, and without consideration; and not being due, either in law or conscience, the law will not allow him to retain it. This rule is so well settled in this state that it is no longer a question whether a recovery can be had where money has been paid without consideration, either under a mistake of law or fact, and which was not owing in law or conscience, nor the result of a compromise. Underwood v. Brockman, 4 Dana, 310; Ray v. Bank of Kentucky, 3 B. Mon. 513; City of Covington v. Powell, 2 Metc. (Ky.) 228; City of Louisville v. Henning, 1 Bush, 383.

The question raised in limine being disposed of, we will now consider the main one in the case, and which involves the construction of a statute not hitherto considered by this court. Section 6, c. 60, Gen. St., provides: "A judgment, except for malicious prosecution, libel, slander, or injury to the person, shall bear legal interest from its date." It is urged that this action is one ex contractu and not ex delicto, and that the words in the statute, " injury to the person," should be confined to those purely of the latter class, or where the complaint is for trespass vi et armis. In view of our opinion upon this point, it is unnecessary to determine the character of the action in which the judgment was obtained. As distinguished counsel, however, have discussed it elaborately, we will notice it briefly. The inquiry would be whether the averments of the petition constitute an action ex contractu, for a breach of the contract to transport the passenger safely, or one ex delicto, for a violation of its duty as a common carrier. It is often difficult to determine, by the averments of a petition, whether, under the common-law system of pleading, the action would have been classed as in assumpsit or in case. The line often becomes quite shadowy. The one must and the other may arise out of a contract. In the first-named character of action the promise is the gist of it, while in the other the neglect of duty is the gravamen of the claim. In either form of action the right of the one party and the liability of the other is based upon the contract. The duty owing arises from it, and the obligation for the breach of which the party may complain rests upon it. An action upon the case, in its broadest meaning, included assumpsit as well as an action in form ex delicto. More generality in pleading was allowed in it than in other forms of action.

Chitty on Pleading (volume 1, p. 152) says: "Where, from a given state of facts, the law raises a legal obligation to do a particular act, and there is a breach of that obligation and a consequential damage, there, although assumpsit may be maintainable upon a promise implied by law to do the act, still an action on the case, founded in tort, is the more proper form of action in which the plaintiff in his declaration states the facts out of which the legal obligation arises, the obligation itself, the breach of it, and the damage resulting from...