Waller's Adm'r v. Collinsworth

• Decision Date: 30 May 1911
• Citation: 144 Ky. 3,137 S.W. 766
• Parties: WALLER'S ADM'R v. COLLINSWORTH. [1]
• Court: Kentucky Court of Appeals

137 S.W. 766

144 Ky. 3

WALLER'S ADM'R v. COLLINSWORTH. ^[1]

Court of Appeals of Kentucky.

May 30, 1911

Appeal from Circuit Court, Lawrence County.

Action by Oscar Waller's administrator against J. A Collinsworth. Judgment for defendant, and plaintiff appeals. Affirmed.

W. D O'Neal, Jr., for appellant.

S. G Kinner, R. J. Burns, and M. S. Burns, for appellee.

CLAY C.

On March 31, 1910, Oscar Waller was killed by Ben Blankenship. Thereafter Lindsey G. Waller qualified as administrator of the estate of Oscar Waller, and brought this action against J. A. Collinsworth to recover damages for Waller's death. A demurrer was sustained to the petition and amended petition, and the petition dismissed; hence this appeal.

The petition and amended petition charge, in substance, that on March 31, 1910, J. A. Collinsworth was engaged in the business of selling merchandise; that he had in stock and was selling hard cider and liquor that would, and did, produce intoxication. On the day of the homicide Oscar Waller and Ben Blankenship went to appellee's store. They were on good terms when they went there. While in the store appellee wrongfully sold and furnished to them intoxicating drinks, to wit, hard cider, which they drank in the store in such quantities as to intoxicate them. They left appellee's store in an intoxicated condition. After leaving Blankenship, as a result of said intoxication, became angry at deceased, Waller, and wrongfully and unlawfully shot and killed him. At the time of the sale appellee had no license to retail liquor, and the local option law was in force in the county. The petition concludes with an allegation to the effect that the wrongful acts of appellee in selling to and furnishing said Blankenship intoxicating drinks was the proximate cause of said shooting and wounding which resulted in the death of deceased, and that, but for said wrongful and unlawful acts of Collinsworth, deceased would not have been killed. Damages were asked in the sum of $10,000.

In many of the states there are special statutes called "civil damage acts," which give in certain cases a right of action to one injured because of the unlawful sale of intoxicating liquors. In this state we have no such act. The nearest approach thereto is section 1307, Ky. St. (section 3634, Russell's St.), which gives to the wife, or the father or the mother, or the child of such inebriate, a right of action against a person who after written notice forbidding him to do so "shall sell, lend, give, procure for, or furnish spirituous, vinous or malt liquors, or any mixture of either, knowingly, to any person who is an inebriate or in the habit of becoming intoxicated or drunk," etc. Manifestly this action was not predicated on this statute, and it therefore has no application.

Section 241 of the Constitution is as follows: "Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death from the corporations and persons so causing the same. Until otherwise provided by law the action to recover such damages shall in all cases be prosecuted by the personal representative of the deceased person. The General Assembly may provide how the recovery shall go and to whom belong; and until such provision is made the same shall form part of the personal estate of the deceased person." Section 6 of the Kentucky Statutes (section 11, Russell's St.) provides, in part, as follows: "Whenever the death of a person shall result from an injury...