Strader's Admrs. v. L. H. and M. Co.
| Citation | 146 Ky. 580 |
| Parties | Strader's Admrs. v. President and Directors of the Lexington Hydraulic and Manufacturing Co. |
| Decision Date | 31 January 1912 |
| Court | Court of Appeals of Kentucky |
Appeal from Fayette Circuit Court.
KIMBALL & HUNTER, FORMAN & FORMAN for appellants.
STOLL & BUSH, GEO. C. WEBB and HUNT, BULLOCK & HUNT for appellees.
The appellee, commonly known as the Lexington Water Company, in 1906, had possession either as owner or lessee, of a large body of land near Lexington. On this land it had constructed a number of surface reservoirs of large acreage. The property seems to have been quite attractive to sportsmen, both fishermen and hunters, as well to those who had not as to those who had the right to follow these pleasant recreations there. On January 2nd, 1905, the Water Company leased the sporting privileges for a period of years at an annual rental of one thousand dollars, to the New Ellerslie Fishing Club, an association of Fayette County gentlemen who had joined together for the purpose of enjoying and maintaining the sport on these waters. Section VIII. of the written contract of lease ran thus:
"Second party agrees to provide the necessary number of watchmen to properly police said reservoirs and the land contiguous thereto, and within two hundred feet of high water mark at all points, and to prevent, as far as it lawfully can, all trespassing upon said land and upon the privileges herein granted; and, so far as it lawfully can, prevent hunting and shooting thereon, and second party will, at its own expense, prosecute all trespassers thereon; but it is not the purpose of the Water Company to constitute second party, or any of its officers, agents, members, employes or servants, the agent of first party to do any unlawful act or to lay hands upon or physically eject any person from said premises or otherwise commit an assault upon any person."
It appears from the record that the Water Company had placed in conspicuous places the customary signs against trespassing; and that the Fishing Club likewise had posted in sundry places about the shores of the lake its notices forbidding fishing and hunting.
On March 27th, 1906, during the spring flight of wild fowl toward the north, James M. Strader, a young man, who had at one time furnished minnows to the Fishing Club's Superintendent for its members, and who, therefore, was doubtless familiar with the premises and regulations governing them, drove out with a companion to the edge of the waters of one of the reservoirs. He saw a duck down upon the water, and taking a small-calibred rifle which he had with him, climbed out of the buggy and started toward the shore of the lake. A little later he was found in a dying condition from a rifie wound entirely through his head from temple to temple. The point where he was found was at an elevation of 6.47 feet above the lake, and some 73 feet from the water's edge along the line traversed by the rifle ball which killed him.
Across the lake, distant some 1718 feet from Strader's position upon the opposite shore of the lake, distant some 315 feet from the water's edge, and on an elevation of 9.97 feet, the appellee company was engaged in building a new pump house. A number of its workmen, and a number of workmen for another concern doing the carpenter work on the new building were present at the pump house. It seems from the uncontradicted testimony that on the morning of this day there had been considerable shooting about the lakes. About one o'clock, just after the workmen at the pump house had had their noon lunch, a number of them were startled by the whistling of a rifle ball overhead coming from Strader's location across the lake. Ben Stewart, an employe of the Water Company, had brought a rifle from his boarding house when he came to work that morning, and placed it inside the pump house. When the shot came overhead, and the workmen were alarmed by it, Stewart took his rifle and fired two shots across the lake in Strader's direction. The first shot struck the water in front of Strader. The second shot struck him, inflicting the wound from which he died a few days later. His brothers qualified as his administrators and brought this action against the Water Company for damages for his death. Upon a trial the jury brought in a verdict for the Water Company, and a judgment was rendered dismissing the petition. From that judgment this appeal is prosecuted
Motions by appellee to strike the bill of evidence from the record, to correct the transcript, and the like, are in the record. The appellants complain that they were denied the right to file an amended petition conforming to the proof, that the court erred in its instructions to the jury, and in excluding competent testimony in their behalf. Because of our conclusion that there was not sufficient testimony to take the case to the jury, these questions need not be considered, save in such incidental way as they may border upon the necessarily somewhat full discussion of the testimony.
So much of the petition as it is necessary to notice charges that one Frank Sutton was an employe, and Superintendent or Assistant Superintendent, in charge of the lands and property of the Water Company; that he or Stewart under his direction ordered Strader, then some 300 yards distant, to cease shooting; that Strader failed to do so; that Stewart, under the immediate order and direction of Sutton, in the line and scope of their employment, for the purpose of protecting the Water Company's property from Strader's trespass and shooting, wrongfully, wilfully and with gross negligence shot toward Strader and struck him with the rifle ball. Upon the trial, on March 16th, 1910, plaintiffs tendered an amendment to the petition filed on March 19th, 1907. This amendment, which was refused by the trial court, differed from the original petition only in that it charged that the shooting by Stewart, under Sutton's order, was to stop the alarm and fear of those at work at the pump house and the consequent interference with the business of the Water Company; while the original charge was that the shooting was to protect the Water Company's property from trespass. Evidently the purpose of the amendment was to argue that Sutton had charge of and the immediate right to protect the furtherance of the work in which his crew was engaged, though he might not have had the right to protect the master's property from trespass. The distinction is fancied rather than real. Whether the shot was fired in protection of the master's property or in protection of the immediate work then in hand is not the material issue. Naturally the mind rebels less at a killing, the inciting motive to which was Strader's endangering the lives of the crew, than at the same killing done under a general plan to protect the master's property from trespass. But though an instinctive sentiment upholds the right of protection of the person, we are not to be misled into assuming that this right of defense of the person of the servant by arms is a right which one acting for the master may exercise without authority. The true issue is whether (conceding that Sutton ordered Stewart to fire the fatal shot) the act was within the scope of the real or apparent authority of Sutton. When we have once fixed this issue clearly in our minds the way is open to a correct decision of this case.
There is testimony in the...
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