198 Ky. 549 | Ky. Ct. App. | 1923
Opinión of the Court by
Reversing.
E. B. and H. B. Hicks filed this- action in the Daviess, circuit court to recover $824.55 alleged to have been paid to the American Railway Express Company and J. K. Shannon while under duress. After several pre
H. B. Hicks, one of the appellees, was employed as platform man, at Owensboro, Kentucky, as appellants claim by the Director General of Railroads but as^ appellees claim by the American Railway Express Company. On the evening of January 6, 1920, he received some valuable packages from a train arriving at Owensboro and receipted therefor to the train expressman. According to his testimony, he placed the packages in a desk drawer in the office of the express company and continued about his business. Lon Gough, who ordinarily received the valuables from that train, was detained 'at his home that evening on account of the illness of a member of his family. He came to the depot shortly after the train had gone and was notified by Hicks that the packages had been placed in the desk drawer.. Hicks had previously resigned his employment, effective as of ■that date, and the following morning he began work at another place. About three o’clock that afternoon Gough discovered that the packages containing money had been lost. He at once crossed the street to the place where Hicks was working and asked him where the packages were. Hicks replied that he had left them in the desk drawer, and came back to the office with Gough, but they were unable to find the packages. Hicks denied any knowledge of their whereabouts. J. K. Shannon, superintendent of the express company, and J. P. Mc-Keown, a special agent, came to Owensboro the following day to investigate the loss. They interviewed Hicks and his father several times, telling them that H. B. Hicks was responsible for the money and that they had interviewed the district attorney, who had advised them to issue a warrant, and intimating that if the money was .not produced at a given hour the next day they would cause Hicks to be arrested. E. B. Hicks, the father of H. B. Hicks, raised the requisite amount of money and
The denial of appellants’ motion to require appellees, to elect as between the two causes of action set up in their petition as amended, and the overruling of the motion to make the petition more specific, are the first, errors assigned. Both of these contentions rest on the ground that the petition does not allege that appellees, jointly owned the $824.55, and it is argued that if they were not joint owners, of the money and each of' them contributed .a part of it, then each had a separate cause of action for the amount contributed by him. The petition alleges that they paid the $824.55 under duress. The cause of action was for wrongful coercion resulting-in their paying the money. There were not two causes, of-action, but one in which two persons were interested;, and under section 22 of the -Civil Code the two were- properly joined as plaintiffs.
Neither was it error to overrule the motion to require appellees to make their petition more specific and. to state how much each of them contributed to the sum total. It is undoubtedly true that if the money was wholly paid by one of them the other was not a proper party plaintiff. But the petition alleges that both of them were put in duress and by reason thereof were coerced into paying the money. It is said, however, that, the proof shows that E. B. Hicks paid the entire amount,, and that fact demonstrates the impropriety of the court’s, ruling on this motion.. It .may be conceded that it was improper to allow any recovery on behalf of H. B. Hicks,, but it -does not follow that the motion to make the petition more specific should have been sustained. That motion was determinable on the averments of the petition, and not in the light of subsequent developments. The-petition, as we have seen, stated a joint cause of action.. Hence it was not error to overrule the motion.
It is earnestly insisted that reversible error was. committed in sustaining demurrers to the amended answers, which set up the two affirmative defenses here
The next question involves a consideration of the primary liability of appellants for the wrongful acts alleged in the petition. The amended answers aver in substance that both Hicks and Shannon were employees of the Director General of Railroads, who, at the time complained of, was in control of and directing the opera-: tions of the American Railway Express Company. A copy of the agreement of June 21, 1918, between the Director General of Railroads and the four major express companies of the United -States was filed by appellants. ■Under tha-t agreement the express companies caused to be organized a corporation known as the American Railway Express Company. On June 26,1918, a contract was made between the Director General and the American Railway Express Company, by which the former employed the express -company to -conduct the express transportation of the country upon all lines of railroads under federal control. One of the provisions of that contract made the express company, as between it and the Director General, liable for any and all claims on account of loss of or damage to the property of others in charge of the express company; and the company further agreed to indemnify and protect the Director General against all claims, demands, suits and actions that might be filed or instituted on account of any claim arising out of the
It is insisted that by the contracts referred to, -and especially by virtue of the proclamation of November 16, 1918, the express company ceased to operate its properties, that its employes became employes of the federal government, and, under Mitchell, By, &c. v. Cumberland Telephone & Telegraph Co., 188 Ky. 263, Commonwealth v. L. & N. R. R. Co., 189 Ky. 309, and Payne, Agent v. Ramsey, 195 Ky. 117, the cause of action, if any appellees had, was against the federal government and not the express company. The provisions of the contract between the Director General and the express company that have been referred to seem to us to refute the contention. The express company by the terms of that contract assumed liability for all claims on account of loss of or damage to its property or the property of others resulting from its operation of the express lines of the country, and agreed that it would make no defense before any court that it was an instrumentality or an agency of the federal government without the approval of the Director General. In view of these obligations we feel warranted in holding that the contract did not shift or transfer to the federal government the. liability incurred by loss of or damage to property in the possession of the express company. It is also our view that the proclamation of November 16, 1918, did not affect that liability, for, as stated in that proclamation, the Direc
As to the contention that the trial court erred in allowing appellees to file the second amended petition, alleging in substance that the $824.55 was paid under a 'bona fide mistake of law and under a mistaken understanding of their legal rights and liabilities, it is sufficient to say that that question was not submitted to the jury in any of the instructions given. The amendment should not have been, filed, because there was no evidence to support it, but, as the question which it sought to raise was not submitted to the jury, the error was harmless.
Instructions 1 and 2 are attacked on the ground that they permitted a recovery if the money was obtained either by fraud or duress practiced upon appellees. This objection to the instructions is well taken. The petition charged duress, which induced the payment of the money. It nowhere alleged that any fraud was practiced, and there is no evidence in the record from which the existence of fraud in the negotiations could be inferred. A recovery for duress might be sustained on a state of facts entirely devoid of -fraud. Indeed, there might be no evidence whatever tending to show fraud in a most flagrant case of duress. If ¿ppellees ’ evidence be given its broadest significance, there can be no deduction of fraud, and yet the instructions permitted a recovery if the money was so obtained. Because of this error in the instructions the judgment must be reversed.
Instruction number 2 directed the jury to find for defendants if it believed from the evidence that were asserting a claim against the plaintiff, H. B. Hicks, on
Instruction number 3 is. not subject to the criticism offered by appellants. It substantially «conforms to the instruction 'approved by this court in Commonwealth v. Reffitt, 149 Ky. 300. While its phraseology is somewhat different, in its essential parts it conforms to the instruction in that case and to the definition of duress generally recognized by the courts. What has been said with reference to instruction number 1 precludes the necessity of a discussion of the instructions offered by appellants. Neither of the instructions should have been given, since under the general doctrine referred to neither the existence of a valid claim nor the commission of a felony constitutes a defense to an action for duress.