137 Ky. 292 | Ky. Ct. App. | 1910
Opinion of the Court by
— 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 satisfaction. 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 decedent, and alleging that the administrator and the railway
Appellants, the children of the decedent, claimed that the order appointing Alexander administrator before the 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 another 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
The place of the accident .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 cross the street along which the street car track was located. She wore a sunbonnet, and was slightly hard of hearing. She approached the car 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 left 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 not turn so that he could see Mrs. Gardner until his ear was within a few feet of her,.
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
Judgment reversed, and cause remanded for a new trial not inconsistent herewith.