Theonis' Administratrix v. Andrews

• Decision Date: 22 October 1929
• Citation: 231 Ky. 160
• Parties: Thoenis' Administratrix v. Andrews et al.
• Court: United States State Supreme Court — District of Kentucky

231 Ky. 160

Thoenis' Administratrix v. Andrews et al.

Court of Appeals of Kentucky.

Decided October 22, 1929.

1. Pleading. — Defective allegations in a pleading may be cured by the verdict which the jury renders.

2. Death. — Where answer contained plea of contributory negligence causing death of plaintiff's intestate, to that extent answer was sufficient.

3. Appeal and Error. — Erroneous overruling of demurrer to answer in action for death would not be prejudicial, unless error was carried into instructions given to jury.

4. Trial. — Issues made by pleadings should be covered by instructions given, if there is any proof to support issues as made.

5. Appeal and Error. — If court in action for death erroneously adjudged pleadings good, and in giving instructions to jury based them on issues as if they had been properly pleaded, there could not possibly have been any prejudicial error in overruling demurrer to answer.

6. Appeal and Error. — If appellant desired to have question presented to Court of Appeals as to whether court erred in overruling demurrer to answer, instructions should have been made part of record.

7. Appeal and Error. — Those parts of record not brought up on appeal will be presumed to support judgment.

8. Appeal and Error. — Although it may be shown that trial court committed error, yet if, on whole case, error does not appear to have prejudiced rights of complaining party, it will not be considered on appeal as reversible error.

9. Pleading. — Verdict will cure defective pleadings, unless the defects prejudiced substantial rights of the adverse party.

Appeal from Campbell Circuit Court.

HOWARD M. BENTON and CHARLES E. LESTER, Jr., for appellant.

ODIS W. BERTELSMAN for appellees.

OPINION OF THE COURT BY JUDGE LOGAN.

Affirming.

The only question made on this appeal is that the trial court erred in overruling a demurrer to the answer. Appellant sought a recovery on the ground that the death of her intestate was brought about through the negligence of appellees. The answer grouped the allegations of the petition and denied them conjunctively. Such an answer was held bad in the case of Johnson et al. v. Asher, 105 S.W. 943, 32 Ky. Law Rep. 317. There is a long line of cases holding that such an answer is bad on demurrer.

Appellant filed a demurrer to the answer, which was overruled. After judgment she moved the court to enter a judgment for her notwithstanding the verdict in favor of appellee. This motion was based on the idea that judgment shall be given for the party whom the pleadings entitle thereto, as is provided in section 386, Civil Code. Defective allegations in a pleading may be cured by the verdict of a jury. Rogers v. Felton, 98 Ky. 148, 32 S.W. 405, 17 Ky. Law Rep. 724.

Appellant contends that, in cases where it has been held that the verdict of a jury cures defects in a pleading, there had been no demurrer to the pleading, and the attention of the court had not been called to the defect. It is her contention that her motion for a judgment notwithstanding the verdict should have been sustained, because she was entitled to a judgment on the face of the pleadings. In making this contention appellant overlooks certain material things. One of them is that the answer contained a plea of contributory negligence. To that extent the answer was certainly sufficient. This court has no knowledge of what issues were submitted to the jury by the instructions. It may be that nothing was submitted other than whether appellant's intestate was guilty of contributory negligence. If the instructions had been made a...