Leach v. Owensboro City Ry Co.
125 S.W. 708
Ky. Ct. App.
1910
Check Treatment

Opinion of the Court by

Judge O’Rear

— Reversing.

Clara Gardner, a widow, was run over and killed by one of appellee’selectric stre&t cars in Owensboro, in March, 1908. William Alexander, her brother, was on his motion appointed administrator of her estate on April 10, 1908, and on that day settled with the railway company for her death by accepting $250 in full satisfaсtion. He executed a receipt in full settlement of the compromise. The ‍​​‌​‌‌​‌‌‌​​‌​‌‌​‌‌​‌‌‌​‌‌‌​‌​​​​​​​​​‌​​‌‌​‌​‌‌‍children of Mrs. Gardner, some of whom were infants, upon learning of the settlement, attempted to repudiate the administrator’s act, and brought this suit against the railway company and the administrator, charging the negligent killing of deсedent, and alleging that the administrator and the railway *295company had fraudulently conspired to settle the claim of the estate for less than it was еntitled to recover, and that in pursuance of the conspiracy the administrator refused to bring this suit for damages accrued to the estate by the wrongful act of his co-defendant. The answer of the railway company denied its negligence, pleaded the contributory negligence, of the deсedent, and relied, too, upon the compromise settlement by the ' administrator. At the close of the evidence the circuit court directed а verdict for the defendants.

Appellants, the children of the decedent, claimed that the order appointing Alexander administrator before thе second term of ‍​​‌​‌‌​‌‌‌​​‌​‌‌​‌‌​‌‌‌​‌‌‌​‌​​​​​​​​​‌​​‌‌​‌​‌‌‍county court after the death of the intestate was void. Though it may have been erroneous, it was not void. Buckner v. L. & N. R. R. Co., 120 Ky. 600, 87 S. W. 777, 27 Ky. Law Rep. 1009; McFarland’s Admr v. L. & N. R. R. Co., 130 Ky. 172, 113 S. W. 82; Spayd v. Brown, 102 S. W. 823, 31 Ky. Law Rep. 438. Under the statute the acting administrator had the lawful right to compromise and settle the claim (sections 3848, 3882, Ky. St. [Russell’s St. secs 3878, 3913]), although the order appointing the administrator had been prematurely entered in the county court. McFarland’s Admr v. L. & N. R. R. Co., supra. In McLemore v. Sebree Coal & Mining Co., 121 Ky., 53, 88 S. W. 1062, 28 Ky. Law Rep. 25, it was held that, if the personal representative of one killed by the negligence of аnother refused to bring action against the wrongdoer by collusion, the beneficiaries of the decedent, who under ‍​​‌​‌‌​‌‌‌​​‌​‌‌​‌‌​‌‌‌​‌‌‌​‌​​​​​​​​​‌​​‌‌​‌​‌‌‍statute are the widow and heirs at law of the decedent (section 6, Ky. St. [Russell’s St. sec. 11].), might maintain the action nevertheless, making the administrator a party defendant. Un*296iess there was a comрromise of the claim in this case in good faith, then there was not a settlement of it at all. If the administrator, in fraud of the lights of the beneficiaries of the еstate of which he had charge, and in collusion with the adverse party, settled the claim against the railway company so as to defeat the action of the real beneficiaries, it may be opened up at the instance of the latter, and the original case tried on its merits. Testing the cоrrectness of the trial court’s ruling in giving the peremptory instruction, the evidence for the plaintiffs in its strongest aspect must be considered. If it showed (1) a prоbable claim against the railway for substantial damages for the destruction of decedent’s power to earn money, and (2) that the administrator and the railway company acted not in good faith in the settlement of it, then the case ought to have gone to the jury.

The place of the acсident .was on Breckinridge street in Owensboro, in a part of the town well built up. Decedent, about 6 o’clock in the afternoon, was attempting to crоss the street along which the street car track was located. She wore a sunbonnet, and was slightly hard of hearing. She approached the cаr track at an angle to cross it, her head inclined, and did not look around. The street ear was going-in on a straight line at ‍​​‌​‌‌​‌‌‌​​‌​‌‌​‌‌​‌‌‌​‌‌‌​‌​​​​​​​​​‌​​‌‌​‌​‌‌‍good speed; one or two witnesses placing it as high as 15 miles an hour. Some of the witnesses say that the motorman was not ringing the gong on the car. One witness testified that the motorman had lеft the brake, going to the side of the car, and was looking- back at some boys who were attempting to jump onto the car to steal a ride. He did nоt turn so that he could see Mrs. Gardner until his ear was within a few feet of her,. *297when he rang the gong and tried to stop the car. But the momentum was such that it struck decеdent and ran over her before it could be stopped. The duty of the motorman was to keep a lookout ahead for pedestrians and others using the street, so as to give them timely warning of the car’s approach, and to have the car under such control that he could stop it if it beсame apparent that those on the track were unaware of its approach, or could not leave the track in time to escape injury. While the street cars were rightfully on the streets, and have right of way, yet pedestrians are also rightfully using the streets, and until aware of the approach of a car may walk across the car tracks laid upon the street. Their presence must be anticipated at any time or place, and it is the duty of those operating the street cars to keep a lookout ahead for such persons, and do so run and control the cars so as not to injure people crossing the tracks. The act of the motorman in failing to keep such lookout was culpable negligence, ■ if he did fail. Plaintiff’s evidence showed, prima facie, a case of negligence against the street car company. Whether decedent was guilty of contributory negligence in going upon the trades without looking to see whether a car was coming was upon the facts for the jury.

Alexander had employed an attorney to assist in looking up the evidence in the case, and had discovered witnesses who told them of the facts substantially as related on the trial. He had not then qualified as administrator, because ‍​​‌​‌‌​‌‌‌​​‌​‌‌​‌‌​‌‌‌​‌‌‌​‌​​​​​​​​​‌​​‌‌​‌​‌‌‍there was some difficulty in finding acceptable surety on his bond. Without the consent of the beneficiaries, without consulting but one of them, and then in spite of the assent which she gave (which was to settle “if the *298others agreed to it”), without consulting his cоunsel, he went to the street car company, and with a lawyer or officer of the company went to the county court and furnished bond, settled the claim for a pittance, and now appears in the case, represented by the street railway company’s counsel, endeavoring to defeat the claim of his nephew and nieces. These are all circumstances which are evidence of a fraudulent purpose to defеat the claim; that lie and the railway company had attempted to make a preferential settlement in behalf of the railway compаny. In Hunter v. Owens, 9 S. W. 717, 10 Ky Law Rep. 651, it is said: “Gross inadequacy of price is always a badge of fraud, and sometimes when the disproportion between the value and the price given is very great the chancellor may, from that fact alone, infer fraud.” Mrs. Gardner was aged between 45 and 50 years, was in good health, ablе to perform manual labor, and was doing so as a wage-earner. The inadequacy of the price paid is grossly dispr-oportioned to the earning value of “the remainder of her life. Whether Alexander was ignorant of that fact (and it is hard to believe he was), it is more than probable the railwаy company was not. The attendant circumstances indicated that the settlement was not fair, and were enough, to say the least of them, to havе warranted their submission to the jury to say whether the settlement was fraudulently entered into.

Judgment reversed, and cause remanded for a new trial not inconsistent herewith.