Meyer's Adm'r v. Zoll

• Decision Date: 18 January 1905
• Citation: 84 S.W. 543,119 Ky. 480
• Parties: MEYER'S ADM'R et al. v. ZOLL.
• Court: Kentucky Court of Appeals

84 S.W. 543

119 Ky. 480

MEYER'S ADM'R et al. v. ZOLL.

Court of Appeals of Kentucky.

January 18, 1905

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

"To be officially reported."

Action by Theresa Rosa Meyer's administrator and others against George J. Zoll. From a judgment for defendant, plaintiffs appeal. Reversed.

Bradley & Batson and Benj. F. Washer, for appellants.

Kohn Baird & Spindle, for appellee.

NUNN J.

The appellant in substance alleged in his petition that on and prior to the 26th day of September, 1902, the appellee was the owner of and kept a vicious dog, which he knew to be dangerous, vicious, and inclined to bite mankind, and which he allowed to go unrestrained and at large; that on the 26th day of September, 1902, this dog went upon the premises and into the residence of the intestate's father in the city of Louisville, without the knowledge of the father, and attacked, bit, and mangled appellant's intestate, by reason of which she endured intense pain, suffering, and agony, both bodily and mental, for 35 days, when she died and asked damages of the appellee.

The appellee answered, and did not deny any of the allegations of the petition, but alleged, in substance, that Theresa Rosa Meyer, appellant's intestate, was an infant, and died about the 1st of November, 1902, unmarried, and without issue, leaving no estate of any kind, except the alleged claim asserted in the petition, and leaving no debts; that she left surviving her a father, John H. Meyer, who asserted against the appellee the same cause of action set up in the petition, and that appellee denied and disclaimed any responsibility or liability thereupon; that by the statute in such cases made and provided the mother and father of appellant's intestate were the exclusive beneficiaries of the alleged cause of action asserted in the petition; that on the 2d day of October, 1902, this appellee and John H. and Theresa Oswald Meyer, the parents of appellant's intestate, compromised and settled all claims against and liabilities of appellee by reason of their child's death and the alleged injury received by her, and signed and delivered a receipt acknowledging full satisfaction thereof as follows:

"Louisville, Ky. Oct. 2, 1902.

"Know all men by these presents: that we, John H. and Teresa Meyer, being husband and wife, and the parents of Teresa Rosa Meyer, do hereby, for and in consideration of the sum of $500, the receipt of which is hereby acknowledged, do on behalf of ourselves and each of us and of our said child, hereby remise, release and forever discharge George Zoll, of the city of louisville, County of Jefferson and State of Kentucky, his heirs, executors and administrators, of and from all actions and causes of actions, suits, claims and demands whatsoever, in law or in equity, and especially from all claims and demands arising from an alleged injury of Teresa Rosa Meyer, the said child of the said John H. Meyer and Teresa Meyer, which occurred at 501 E. Kentucky Street, Louisville, Ky. on or about the 26th day of September, 1902, which the said John H. Meyer and Teresa Meyer have had, now have, or which their heirs, executors, administrators, or assigns, or any of them, now have, hereafter can, shall or may have for or by reason of the said alleged injuries, or for any cause, matter or thing whatsoever.

"In witness whereof we have hereunto set our hands this 2nd day of October, 1902.

"[Signed]

John H. Meyer,

"Teresa Oswald Meyer." Appellee further alleged that at the time appellant Dean was appointed and qualified as the administrator of Theresa Rosa Meyer, she had left no estate of any kind or character, and that the appointment of appellant as such administrator was null and void, and that he had no right to prosecute this claim, inasmuch as the parents of his intestate and the sole beneficiaries were fully paid and satisfied as to any and all claims which might exist against appellee for their use and benefit. The court overruled a demurrer to this answer.

Appellant filed a reply in effect denying that his intestate's parents had compromised and settled the matters sued for in this...