137 Ky. 398 | Ky. Ct. App. | 1910
— Reversing.
On August 4, 1909, Prank. J. Goss instituted an action against appellee, by which he sought to recover damages on account of personal injuries received by him while laboring for it. Goss died a short time after he instituted the action, and appellant, Edward J. Rejss, as executor, filed a petition for a revivor of the action and an amended petition to which a demurrer was interposed by appellee and sustained by the court; and from that judgment this appeal is prosecuted.
Omitting the formal parts, the amended petition is as follows: “The plaintiff, Ed. J. Reiss, states since the filing of the original petition herein that Prank J. Goss departed this life on the 21st day of August, 1909, leaving a last will and testament; that by order of the county court of August 25, 1909, he was duly appointed executor of the estate of said Prank J. Goss, deceased, and qualified as such by giving* bond, all of which appears of record in the Jefferson county court, a certified copy of the order appointing him executor being filed herewith and made a part of this petition. Plaintiff states that for the past several years the decedent was subject to epileptic spells or fits, and that said spells occurred more frequently during the past two or three years previous to the death of decedent, and occurred with such great frequency as to materially weaken decedent’s mind, and that decedent’s mental and physical faculties were considerably impaired thereby. He says that for the past 10 years said Prank J. Goss at various times was employed by the defendant company as a laborer engaged in performing and doing work
After describing in detail his injuries, suffering, and the manner in which he was treated, which we omit, the petition continues as follows: “Plaintiff states that the decedent, Frank J. Goss, on' account of the injuries received had to employ a physician and surgeon and incurred a liability of $500 for services rendered by said physician and surgeon. Plaintiff states that notwithstanding the fact that the defendant company by its agents and servants superior in authority to decedent knew that the decedent was incompetent and irresponsible, and could not appreciate the danger incident to the character of work he was ordered to do, was placed to do, and per
Appellee contends that the action of the lower court should be sustained for two reasons: First, because the petition does not state a cause of action against it; second, it ip not alleged in the petition, nor is it shown by the order of the county court appointing appellant executor of Goss, that Goss was domiciled in Jefferson county, Ky., at the date of his death. The petition, in substance, alleges that for years Goss had been a sufferer from epileptic spells, and that they had occurred so frequently that his mind had been materially impaired; that he had become irresponsible; that he was not capable of appreciating or realizing the danger incident to any work or labor assigned to him; that these facts were well known to appellee at the time it assigned Goss to labor at this tub of hot glue; that on the date of Goss’ injury appellee’s agent changed him from a reasonably safe place for one in his condition to labor and peremptorily ordered him to glue barrels, knowing at the time that it was a dangerous and unsafe place for Goss to labor in his impaired physical and mental condition, and in a short time after he began his labor he received his injuries. All this is admitted to be true by the demurrer. If Goss’ mind was so impaired that he could not and did not realize and appreciate the danger incident to the labor he was ordered to perform, and appellee knew it, then appellee was guilty of actionable negligence in assign-
Appellee’s counsel cite three opinions by this court fco sustain the judgment of the lower court, to-wit: Hasty v. C., N. O. & T. P. Ry. Co., 97 S. W. 433, 30 Ky. Law Rep. 144; Wilson v. Chess Wymond Co., 117 Ky. 567, 78 S. W. 453, 25 Ky. Law Rep. 1655; Andricus’ Admr v. Pineville Coal Co., 121 Ky. 724, 90 S. W. 233, 28 Ky. Law Rep. 704. These cases are not applicable to the case at ban. In the first case named, Hasty received an injury to .his arm and appellees ’ agent desired him to continue work, which he did upon the assurance of his superior that it would cause no further injury to his arm, but it did, however. In that case the court, in substance, said that the servant must determine for himself when he is able to work; that Hasty was more competent to judge of the extent of his injury than his superior, the agent of appellee, who was not a physician nor required to be. It was not shown in that case that Hasty’s mind was impaired to such an extent that he could not realize or appreciate the risk he was to assume, and that appellee’s agent, who was in authority, knew that fact. If such had been shown, we apprehend the result would have been different. What we have said with reference to this case will apply to the other cases cited.
As to the second proposition — that is, that appellant is not authorized to maintain this action as executor because it is not shown that Goss resided in Jefferson county at his death, and therefore the
For these reasons, the judgment of the lower court is reversed and remanded for further proceedings consistent herewith.