Owensboro & N. Ry. Co. v. Barclay's Adm'r

• Decision Date: 14 October 1897
• Parties: OWENSBORO & N. RY. CO. v. BARCLAY'S ADM'R.
• Court: Kentucky Court of Appeals

43 S.W. 177

102 Ky. 16

OWENSBORO & N. RY. CO. v. BARCLAY'S ADM'R.

Court of Appeals of Kentucky.

October 14, 1897

Appeal from circuit court, Logan county.

"To be officially reported."

Action by Hugh Barclay's administrator against the Owensboro &amp Nashville Railway Company for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

W. F Browder and H. W. Bruce, for appellant.

John S Rhea, Craddock & Sanditz, and Edward W. Hines, for appellee.

DU RELLE, J.

Hugh Barclay, Jr., was a fireman on the railroad of appellant, and had been so employed for some time previous to June 5, 1892. On that day a change of schedule went into effect, at 7 o'clock p. m. By the old time card the regular train for Owensboro left Russellville at 7:25 a. m. By the new time card the starting time was made 20 minutes later. Barclay was acting as fireman on an excursion train from Owensboro to Bowling Green, by way of Russellville. The engineer and conductor of the excursion train, under whose orders Barclay was acting, misunderstood the time card, and, supposing it to have gone into effect at 7 a. m. of that day, instead of 7 p m., failed to stop at the proper station to permit the regular train for Owensboro to pass, which failure resulted in a collision between the two trains, near South Carrollton. Barclay was frightfully mangled and scalded in the collision and died about two hours afterwards. Appellee qualified as Barclay's administrator, brought suit for damages against appellant, and recovered a verdict and judgment for $15,000, to reverse which this appeal is prosecuted.

The first question raised, in logical order, is the right of appellee to bring the suit, the point being made that the bank, which was by law authorized to act as administrator, was appointed by a special judge elected in pursuance of the provisions of the act of May 11, 1892, and that that act "was not adopted pursuant to the provisions of the constitution of Kentucky, and that it is for that reason, among other reasons, unconstitutional, null, and void." It was made to appear from the journals of the house and senate that the act, upon its passage in the house, received the votes of two-fifths of the members elected, a majority of the members voting, and the vote being taken by yeas and nays, and entered in the journal, in accordance with section 46 of the constitution. It was amended in the senate by the insertion of a provision that the pay of the special judge should not be taken out of the regular judge's salary, but out of the county levy, and was passed by that body in accordance with section 46. Upon the question of the house concurring in the senate amendment, the journal does not show that the vote was taken by years and nays, nor does it appear by what majority the amendment was concurred in, nor was the vote entered in the journal; but it was enrolled as amended, signed by the speaker, and signed and approved by the governor. Without stopping to pass upon the sufficiency of the pleading in which this objection is made, under the rule laid down in Norman v. Board of Managers (Ky.) 20 S.W. 901, it is sufficient to say that in Lafferty v. Huffman (Ky.) 35 S.W. 128, in a well-considered opinion by Judge Hazelrigg, it was held that "the enrolled bill, when attested by the presiding officers as the law requires, must be accepted by the courts as the very bill adopted by the legislature, and that its mode of enactment was in conformity to all constitutional requirements. When so authenticated, it imports absolute verity, and is unimpeachable by the journals."

A further objection urged to the right of appellee to prosecute the action is the averment in the answer that the father of Hugh Barclay, Jr., had, previous to the order appointing appellee administrator, applied to the county court to be appointed; that the same order which appointed appellee denied the father's application, and he thereupon took an appeal from the order, executed a supersedeas bond, and took all other necessary steps to bring up the judgment and proceeding of the county court to the circuit court for review and reversal; and that said appeal was then pending in the circuit court. This pleading, however, does not state that a supersedeas was ever issued. Unless a supersedeas was issued, there was no stay of proceedings upon the judgment appealed from. Under the act of May 5, 1880, the circuit court has appellate jurisdiction of all orders or judgments of the county court granting, revoking, or refusing letters of administration. Carroll's Code, p. 379. By the act of May 15, 1886, the time and manner of taking such appeals are governed (Carroll's Code, p. 380) by the provisions of the Civil Code of Practice regulating appeals from said courts. Section 724 provides the manner of taking the appeal, and provides for the issuance of a supersedeas or order to the judge rendering the judgment to stay proceedings thereon. We regard the issuance of the supersedeas as a necessary averment.

It is urged as a reversible error that the trial court denied an application for a change of venue. It is unnecessary for us to consider whether the trial court erred in deciding that appellant could obtain a fair and impartial trial in Logan county. The statute then in force (which was the act of April 9, 1880, amending Gen. St. c. 12) provides: "The action of the court in refusing or granting such change of venue shall be final and without appeal." It is insisted, however, that this provision is a mere declaration that no appeal could be taken from an order granting or refusing a change of venue, but that an erroneous decision of the question is, nevertheless, a reversible error after final judgment. But such an order would clearly not have been a final order from which an appeal might be taken, had there been no such declaration in the statute; and the language used, "shall be final and without appeal," clearly indicates the legislative intent to be that such order should not afford ground for reversal. Moreover, by an act which went into effect five days after the order complained of, the legislature dropped from the statute the language above quoted, and provided that the court "shall exercise a sound discretion in deciding the question," indicating the legislative construction to be in accordance with the view here given. And the superior court, in Howard v. Dietrich (11 Ky. Law Rep. 235), considering this statute which was then in force, held that the refusal of the court to grant a change of venue in a civil case cannot be reviewed on appeal. It is earnestly urged, however, that the motion for a new trial, which was made after the new statute went into effect, at a subsequent term, gave the trial court an opportunity to correct the error which it is claimed was made in denying the change of venue. We should be slow, however, to conclude that the legislature, by the passage of the new act, intended to make a previous act of a court reversible error, which was not so when the action was taken.

It is further claimed that section 241 of the present constitution under which it is conceded the action was brought, is in violation of the provisions of the fourteenth amendment to the constitution of the United States, providing that "no state shall make or enforce any act which shall...