Phillips' Committee v. Ward's Administrator
| Decision Date | 10 November 1931 |
| Citation | 241 Ky. 25 |
| Parties | Phillips' Committee v. Ward's Administrator. |
| Court | United States State Supreme Court — District of Kentucky |
1. Executors and Administrators. — Petition containing no averment of appointment of administrator, held sufficient, where plaintiff's capacity was manifest.
The petition was sufficient, although there was no specific averment of appointment of administrator, since in addition to caption showing action was instituted by administrator, the plaintiff referred to himself several times as administrator, and the defendant was advised by the pleadings of the character of the case, the facts he would be required to combat; the capacity in which plaintiff sued was defined, and the persons for whose benefit the recovery sought were disclosed, and the allegations were adequate to enable the court to try the case correctly and pronounce an appropriate judgment.
2. Death. — County court of county in which deceased was domiciled and shot had jurisdiction to appoint administrator; hence fact he died in another state was immaterial as regards right to sue for wrongful death (Ky. Stats., secs. 3894, 4849).
3. Death. — In action for wrongful death, testimony regarding conduct of defendant, two or three days preceding occasion on which deceased was shot, held admissible on issue of self-defense, although defendant's insanity was conceded.
4. Insane Persons. — Insane person is liable civilly for torts to same extent as sane person, except punitive damages may not be allowed.
5. Insane Persons. — Insane persons are not liable for torts in which gravamen of action is malice.
6. Death. — In action for wrongful death, burden was on plaintiff to prove facts showing commission and consequences of tort, and disprove plea of self-defense, although no punitive damages could be awarded against insane defendant.
7. Insane Persons. — Rules of evidence are not different when defendant is insane person.
8. Trial. — Refusing instruction covering defendant's theory of self-defense held proper, where court's instruction contained correct criterion for jury's guidance.
9. Death. — Court's self-defense instruction, in action for wrongful death against insane defendant, held proper.
The court instructed that if defendant shot deceased at time when defendant believed and had reasonable grounds to believe that he was in danger of death or infliction of some great bodily harm at the hands of deceased, or other person acting with him, and it was believed by the defendant, in the exercise of reasonable judgment, to be necessary to shoot deceased to avert that danger, real or apparent to him, he would be justified in shooting.
10. Insane Persons. — Defendant's insanity does not mitigate compensatory damages allowable for injuries caused by him.
11. Appeal and Error. — Defendant could not complain on ground that instruction was more favorable to him than was justified by law.
12. Appeal and Error. — Instruction in action for wrongful death permitting recovery if insane defendant acted wrongfully, willfully, maliciously in shooting deceased, held favorable error.
The instruction was not prejudicial to defendant, since it was more favorable to him than was justified, for if defendant shot and killed deceased, when it was not necessary, in self-defense, he was liable for the civil consequences.
13. Parent and Child. — In case of personal injury to infant, damages for impairment of earning power are divided so that parents may recover for loss of services until maturity, and injured person may recover damages thereafter accruing.
14. Death. — In case of wrongful death of infant, whole damage is to infant's estate, and measure thereof is fair compensation for total destruction of power to earn money.
15. Death. — In case of wrongful death of infant, parents have no cause of action for loss of infant's services during period of minority.
16. Evidence. — In action for wrongful death, fact that deceased died from wound inflicted by defendant could be established by witnesses with knowledge thereof; expert testimony not being indispensable.
17. Appeal and Error. — Judgment for damages will not be reversed for excessiveness, unless amount awarded shows passion of prejudice of jury.
18. Death. — $20,000 damages for death of trustworthy and capable man of 19 years, earning as much as $4 per day, and having life expectancy of almost 35 years, held not excessive.
Appeal from Pike Circuit Court.
J.C. CANTRELL, ABNER MAY and E.J. PICKLESIMER for appellant.
J.E. CHILDERS and W.G.W. RIDDLE for appellee.
Affirming.
Hillard Phillips shot and severely wounded Jarvey Ward, who was taken to a hospital at Williamson, West Virginia, where he lingered and languished for twenty-three days, when death ensued. J.T. Ward, administrator of the estate of Jarvey Ward, deceased, recovered a judgment for $20,000 damages against Hilliard Phillips, and the latter's motion for a new trial was overruled. Phillips had been adjudged insane, and his committee controlled and conducted the defense of the action. The committee has prosecuted an appeal on behalf of his ward.
It is first insisted that the petition of the plaintiff failed to state a cause of action. The pleading is peculiar. It is styled, J.T. Ward, administrator of the estate of his deceased son, Jarvey Ward, plaintiff, versus Hilliard Phillips, defendant. There is no specific averment of the appointment of the administrator, but, in addition to the caption above quoted, the plaintiff refers to himself several times as administrator of the estate of his deceased son. The pleading was signed by counsel as "attorney for the administrator." No motion to amplify the allegations were made. It was alleged that the deceased was an unmarried man, without children, and damages were sought by the plaintiff in a representative capacity for the benefit of the father and mother of Jarvey Ward. The petition adequately alleged a cause of action against the defendant for the wrongful, unlawful, willful, malicious, and wanton destruction of the life of Jarvey Ward. Souther v. Belleau, 203 Ky. 508, 262 S.W. 619, 36 A.L.R. 956. The allegations respecting punitive damages need not be noticed, since the defendant's insanity was a complete defense thereto, and no such damages were allowed. By an amended petition, the plaintiff produced and filed a certified copy of an order of the Pike county court showing his appointment and qualification as administrator of the estate of Jarvey Ward, deceased.
The defendant appeared "in his own proper person" and by his committee, and filed a general demurrer to the petition. At the same time, he filed a motion to require an election by the plaintiff whether he would prosecute the action under section 4 or section 6 of the Kentucky Statutes, and whether the action would be prosecuted by J.T. Ward and Sarah Ward as individuals, or by J.T. Ward as administrator. A motion was made to require plaintiff to make the petition definite and certain by stating where the plaintiff's intestate, Jarvey Ward, died. The circuit court overruled the demurrer and the motion to elect, but ordered the action to proceed in the name of the personal representative. The motion to require the plaintiff to state where his intestate died was overruled. A motion to strike out certain items of special damage pleaded in the petition was sustained in part and overruled in part. The defendant then filed an answer consisting of four separate paragraphs. The first was a traverse of the averments of the petition, the second interposed a defense based on the insanity of the defendant, the third presented an affirmative plea of self-defense, and the fourth consisted of a simple averment that the death of Jarvey Ward occurred in the state of West Virginia, and that the plaintiff had no capacity to sue. A motion was filed by plaintiff to require defendant to elect between his inconsistent defenses, but it was withdrawn, and the affirmative allegations of the answer were traversed of record.
We have stated very fully the scope and effect of the pleadings to demonstrate the fallacy of the argument that no cause of action was stated in the petition. The capacity in which the plaintiff was proceeding was manifest, and the order of the court in that respect removed all reason for further cavil. 24 C.J., sec. 2065, p. 821. Bowler v. Lane, 3 Metc. 311; Chesapeake & O. Ry. Co. v. Case, 158 Ky. 594, 165 S.W. 968; Quinn's Adm'r v. Newport News & Mississippi Valley Co., 22 S.W. 223, 15 Ky. Law Rep. 74.
The defendant was advised by the pleadings of the character of the case, and of the facts he would be required to combat; the capacity in which the plaintiff sued was defined, and the persons for whose benefit the recovery was sought were disclosed. The allegations of the pleadings were adequate to enable the court to try the case correctly, and to pronounce an appropriate judgment that would constitute a complete bar to any further litigation based upon the same cause of action. When such conditions concur, the purpose of pleading has been realized [, and the defendant could not have been prejudiced by the fact that the petition was not a work of art. Giltner v. McCombs Producing & Refining Co., 190 Ky. 601, 228 S.W. 8; City of Princeton v. Baker, 237 Ky. 325, 35 S.W. (2d) 524.
The fact that Jarvey Ward died in another state was immaterial. He was domiciled in Pike county where he was shot, and the county court of that county had jurisdiction to appoint the administrator. Ky. Stats., sec. 3894 and section 4849. Chesapeake & O.R. Co. v. Ryan's 183 Ky. 428, 209 S.W. 538; Hall's Adm'r v. L. & N.R. Co., 102 Ky. 480, 43 S.W. 698, 19 Ky. Law Rep. 1529, 80 Am. St. Rep. 358; Jacob's Adm'r v. L. & N.R. Co., 10 Bush, 263; Louisville & N.R. Co. v. Shumaker's Adm'x, 112 Ky. 431, 53 S.W. 12, 21 Ky. Law Rep. 803; ...
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