Pennington's Administrator v. Commonwealth

• Decision Date: 23 February 1932
• Citation: 242 Ky. 527
• Parties: Pennington's Administrator et al. v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

242 Ky. 527

Pennington's Administrator et al. v. Commonwealth.

Court of Appeals of Kentucky.

Decided February 23, 1932.

1. States. — Commonwealth cannot be sued, except by its express consent.

2. States. — Immunity of commonwealth from suit is absolute for negligence of its agents or employees representing it as a sovereignty.

3. States. — Commonwealth's agents and employees are immune from suit by reason of their official conduct or negligence.

4. States. — Under legislative resolution permitting plaintiff to file suit against commonwealth for loss of daughter's life, plaintiff must show good cause of action against commonwealth and conform to requirements of resolution and general law in proving cause of action.

5. States. — Legislative resolution permitting plaintiff to sue commonwealth for loss of daughter's life waived commonwealth's immunity for negligence of agents acting in sovereign capacity.

6. States. — Commonwealth consenting to be sued without reservation consents to be sued according to law applicable between individuals.

Appeal from Franklin Circuit Court.

CHARLES N. HOBSON, FRANK P. STIVERS and A.D. HALL for appellant.

J.W. CAMMACK, Attorney General, and BASIL P. COOPER, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

The Kentucky State Industrial College was an institution owned, conducted, and maintained in Franklin county, Ky., by the commonwealth of Kentucky, for the education of colored persons. In April, 1927, Annie May Pennington who had previously matriculated as a resident student of the institution, lost her life by fire which destroyed the building in which the institution of learning was conducted. The General Assembly at its 1930 session adopted the following resolution:

"Be it resolved by the General Assembly of the Commonwealth of Kentucky: That Walter Pennington, the father of the deceased Annie May Pennington, be and the same is hereby empowered and authorized to file suit and prosecute appropriate actions against the Commonwealth of Kentucky for the purpose of determining the liability of the Commonwealth for such injuries and death, if any there be. Such action may be brought in the Franklin circuit court, the same being the county in which such injuries and death occurred."

Walter Pennington qualified as the administrator of the estate of Annie May Pennington, and, by virtue of the authority of the resolution, instituted in the Franklin circuit court this action against the commonwealth of Kentucky to recover of it damages resulting to her estate by reason of her death. The cause of action was predicated upon the negligence of the commonwealth, its agents, employees and those in charge of the Kentucky State Industrial College at the time of her death, and because of its and their failure to construct and maintain suitable and sufficient fire escapes, and to install emergency apparatus to be used in case of fire.

On a trial by jury, a peremptory instruction was awarded to the commonwealth at the conclusion of the evidence offered by appellant, from which this appeal was taken.

The Attorney General insists that the resolution adopted by the General Assembly merely waives immunity from suit, but that it does not either expressly or impliedly waive the right of the commonwealth to insist on its immunity from suit arising from the mistake or negligence of its agents or employees in the construction and operation of the building or their failure to equip it with adequate equipment in case of fire. It is conceded by the appellant that the state cannot be sued by a claimant in its own courts or in any other, except by its express consent [Ketterer's Adm'r v. State Board of Control, 131 Ky. 287, 115 S.W....