Perry's Adm'r v. Louisville & N.R. Co.

• Decision Date: 20 April 1923
• Citation: 199 Ky. 396,251 S.W. 202
• Parties: PERRY'S ADM'R v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

251 S.W. 202

199 Ky. 396

PERRY'S ADM'R v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

April 20, 1923

Rehearing Denied June 12, 1923.

Appeal from Circuit Court, Warren County.

Action by the administrator of Mrs. Flourida Perry against the Louisville & Nashville Railroad Company to recover damages for the death of plaintiff's intestate. From a judgment dismissing the action when the administrator declined to plead further after a general demurrer to the reply was sustained, the administrator appeals. Affirmed.

Gaines & Gardner and Charles Drake, all of Bowling Green, for appellant.

B. D Warfield, of Louisville, and Rodes & Harlin, of Bowling Green, for appellee.

SAMPSON C.J.

While Mrs. Flourida Perry was crossing the tracks of the appellee Louisville & Nashville Railroad Company, in the city of Bowling Green, she sustained an injury through the negligence of the employees of the said company. On October 8, 1920, she instituted an action in the Warren circuit court against said railroad company to recover damages for said injuries in the sum of $20,000. This case was prosecuted to judgment, she being awarded $1,000, which was paid by the railroad company. In September, 1921, something more than one year after her injury, Mrs. Perry died survived by her husband, Ross Perry and an infant child. After her death, her husband qualified as her administrator and instituted the present action to recover $20,000 damages for the total destruction of the power of Mrs. Perry to earn money based upon the same facts as the original action in which Mrs. Perry was plaintiff and recovered judgment in the sum of $1,000 against the same defendant.

The railroad company demurred to the petition and, without waiving the demurrer, filed answer in three paragraphs. In addition to the traverse, the answer contained a plea of res judicata based upon the action by Mrs. Perry against the railroad company for said injuries, all of the facts concerning said action being set forth with particularity with copies of the petition, amended petition, answer, and reply in the said first suit attached as exhibits. The last paragraph of the answer was a plea of contributory negligence. By reply the administrator of Mrs. Perry admitted that Mrs. Perry during her life and on October 8, 1920, brought suit in the Warren circuit court against the defendant railroad company to recover for personal injuries which she alleged she received on account of the defendant's negligence, and did not deny that the said injuries were the same which he is now alleging brought about her death; but denied that the first suit was to recover for the same alleged injuries set out in the petition, and denied that the first action constituted a bar to the plaintiff's right to a recovery in this action. A general demurrer was filed to said reply and sustained by the court, and upon the administrator declining to further plead the action was dismissed, and this appeal results.

The question is: May the administrator of one who, during her life, instituted and prosecuted to judgment an action in tort for injuries sustained by her through the negligence of another, and which judgment has been satisfied, maintain an action for recovery of damages for the death of such person later resulting from the same injuries, either under the common law or under the constitutional section 241 and section 6 of our statutes?

The administrator as appellant here insists that an action may be maintained and a recovery had for the same injuries to the same person, growing out of the same negligence, if the recovery be for...