Utterback's Administrator v. Quick

• Decision Date: 07 June 1929
• Citation: 230 Ky. 333
• Court: United States State Supreme Court — District of Kentucky
• Parties: Utterback's Administrator v. Quick.

230 Ky. 333

Utterback's Administrator v. Quick.

Court of Appeals of Kentucky.

Decided June 7, 1929.

1. Death. — In action for death of occupant of automobile driven by defendant, in accident occurring in state of Illinois, plaintiff to state cause of action was required to allege in petition that deceased left surviving him widow or next of kin who sustained pecuniary loss as result of his death under Laws Ill. 1853, p. 97, as amended by Laws Ill. 1903, p. 217.

2. Pleading. — Where defendant withdraws demurrer after court's action in improperly overruling it, record must be treated as though no demurrer had ever been filed.

3. Trial. — Defendant's motion for peremptory instruction raised question of sufficiency of plaintiff's petition and need not be treated merely as a demurrer to the evidence, since evidence cannot be considered without pleadings to support it.

4. Pleading. — Evidence cannot be considered, where there is no pleading to support it.

5. Courts. — Statement of court, not necessary to determination of issues raised by record and considered by court, is "dictum" which has no binding effect as a precedent.

Appeal from McCracken Circuit Court.

C.C. GRASSHAM for appellant.

WHEELER & HUGHES for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Affirming.

The appellant here was plaintiff below, and is appealing from a directed verdict against him. About 5:15 p.m. on Sunday, February 19, 1928, Emmett L. Quick and J. Palmer Utterback were en route to St. Louis, Mo. They were riding in a Dodge coupe, which was owned and driven by Quick. Between the cities of Mascoutah and Belleville in the state of Illinois, and while traveling route No. 15 in that state, this automobile left the highway, was overturned, and Utterback was instantly killed. J.C. Utterback qualified as administrator of his said son's estate and instituted this action in the circuit court of McCracken county, Ky., against Quick. He asked judgment for $10,000 for the death of Palmer Utterback, which it was alleged was caused by the negligence of Quick in the operation of this automobile.

In his petition, he pleaded that at its regular session in 1853 (Laws 1853, p. 97), the Legislature of Illinois passed an act by the provisions of which a liability is imposed upon one who by his negligence causes the death of another, and that by an amendment to that act, approved May 13, 1903 (Laws 1903, p. 217), the Legislature of Illinois had provided that such an action should be brought by and in the name of the personal representative of the deceased and that the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of the deceased; and that by the provisions of that act the amount of recovery is limited to $10,000. The defendant demurred to the petition and, without waiving his demurrer, answered. In the first paragraph of his answer, he controverted the petition. The second paragraph of his answer was a plea of joint enterprise and contributory negligence. The plaintiff amended his petition and made his allegations of negligence more specific. The defendant amended his answer and denied these allegations, whereupon the plaintiff filed reply. The court, after considering defendant's demurrer to the petition and to the petition as amended, overruled it. Thereafter, upon motion of the defendant, it was ordered that the order filing this demurrer be set aside, and the defendant was allowed to withdraw and did withdraw his demurrer. The parties filed a stipulation signed by their attorneys in which they agreed that the statutes pleaded by the plaintiff in his petition were correctly pleaded and were still in force; that the citations showing where said laws may be found were correct; proof of these statutes was waived; and it was agreed that the McCracken circuit court and this court may treat the statutes quoted in the petition as properly pleaded and proven on all motions and trials in this case. This stipulation went further and provided:

"It is further agreed that every rule of law established by the decisions of the Supreme Court of Illinois, or the Appellate Courts of Illinois, construing the statutes quoted in the petition or establishing or in any way affecting the rights of the parties hereto, may be considered by the McCracken circuit court and the Court of Appeals of Kentucky, on all motions and trials of this case, as though properly plead and proven.

"Either party may cite or produce before the McCracken circuit court or the Court of Appeals of Kentucky, the statutes of the state of Illinois, or the reported decisions of the Supreme Court or the Appellate Courts of the state of Illinois, and it is agreed that the rules of law established by such statutes or such reports of decisions shall be treated in all respects as though properly plead, proven or certified, as required by the laws of the State of Kentucky, and shall be treated as part of the pleadings of this case as though plead in extenso in the petition, answer or other pleadings, and shall be so considered on all motions and trials, in this case."

Many questions are raised on this appeal, but in view of the conclusion we have reached, it will be necessary for us to consider but one of them. The plaintiff did not in his petition allege that Palmer Utterback left surviving him any widow or next of kin who sustained a pecuniary injury as a result of his death. Plaintiff proved that Palmer Utterback was earning at the time of his death between $3,600 and $4,000 per annum, that he was 30 years of age, in good health, and had an expectancy of 34.34 years of further life. The plaintiff was allowed, over the objection of the defendant, to prove that Utterback left surviving him a wife and three children. Thus the plaintiff was allowed to prove that Utterback had left a widow and next of kin, though he had failed to allege that in his petition.

The Supreme Court of Illinois, in the case of Chicago & R.I.R. Co. v. Morris, 26 Ill. 400, held that before a party suing for these damages can be allowed to recover, it must be alleged in the declaration and proved that the deceased left a widow or next of kin to whom the damages could be distributed. The same question was before that court in the case of Quincy Coal Co. v. Hood's Adm'rs, 77 Ill. 68, and the court again held the plaintiff is bound to allege there was such person surviving, and under...