Phillips' Committee v. Ward's Adm'r

Decision Date10 November 1931
Citation43 S.W.2d 331,241 Ky. 25
PartiesPHILLIPS' COMMITTEE v. WARD'S ADMINISTRATOR.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Pike County.

Action by Jarvey Ward's Administrator against Hillard Phillips committee. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

J. C Cantrell, of Stone, Abner May, of McVeigh, and E. J Picklesimer, of Pikeville, for appellant.

J. E. Childers, of Pikeville, and W. G. W. Riddle, of Toler, for appellee.

WILLIS J.

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 Hillard 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 Hillard 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., § 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 (Strong v. L. & N. R. Co., 240 Ky. 781, 43 S.W.2d 11, decided October 30, 1931), 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. § 3894 and section 4849. Chesapeake & O. R. Co. v. Ryan's Adm'r, 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; Jacobs' 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; Young's Adm'r v. L. & N. R. Co., 121 Ky. 483, 89 S.W. 475, 28 Ky. Law Rep. 451; Walter's Adm'r v. Ky. Traction & Terminal Co., 206 Ky. 100, 266 S.W. 887.

The next complaint is that the trial court erred in the admission of evidence for the plaintiff. The criticism is addressed to the testimony of several witnesses detailing the conduct of Hillard Phillips for two or three days preceding the occasion upon which Jarvey Ward was shot. The evidence described acts of Hillard Phillips very similar to his conduct at the time of the shooting, and explained the purpose actuating him when he shot Ward. It had a bearing on the issue of self-defense. When the testimony was admitted, there was an issue also as to the sanity of Phillips, and, after that fact was conceded, a motion was made to exclude the particular testimony. But the court properly overruled the motion, and permitted the evidence to remain with the jury. It concerned the conduct of Phillips leading up to the final fatal shooting, and was pertinent, relevant, and material on the remaining issues which the jury had to determine. An insane person is liable civilly for his torts to the same extent as a sane person, except that punitive damages may not be allowed; and such persons are not liable for torts in which the gravamen of the action is malice, such as slander, libel, and malicious prosecution. 14 R. C. L. § 51, p. 596; 32 C.J., § 545, p. 749; Irvine v. Gibson, 117 Ky. 306, 77 S.W. 1106, 25 Ky. Law Rep. 1418, 111 Am. St. Rep. 251, 4 Ann. Cas. 569; Young v. Young, 141 Ky. 76, 132 S.W. 155; Chesapeake & O. Ry. Co. v. Francisco, 149 Ky. 307, 148 S.W. 46, 42 L. R. A. (N. S.) 83.

Although no punitive damages could be awarded against the lunatic, it was nevertheless necessary for the plaintiff to prove the facts showing the commission and consequences of the tort, and that the lunatic did not act in self-defense as was claimed. The defendant tendered the issues made by a traverse and a plea of self-defense, and it was competent for the litigants to adduce every fact bearing on the issues presented. 32 C.J. § 639, § 640 and § 614, pp. 786 and 787; Young v. Young, supra.

The rules of evidence are not different when the defendant is an insane person. Since the evidence complained of was plainly admissible under the issues when the defendant is a sane person, it is equally competent on the same issues when the defendant happens to be an insane person.

Complaint is made that the trial court refused to give two instructions offered by the appellant. One of the rejected instructions covered the defendant's theory of self-defense, and the other directed the jury to consider the insanity of the defendant in mitigation of actual or compensatory damages. The instructions were properly refused. The defendant's right of self-defense was accurately defined in an instruction given to the jury. The difference in the two instructions consisted in the degree of danger...

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