Meyer's Admr. v. Zoll

119 Ky. 480 | Ky. Ct. App. | 1905

Opinion op the court by

JUDGE NUNN

Reversing.

Tlie appellant in substance alleged in his petition that on and prior to the 26th day of September, 1902, the appellee was the owner of and kept a vicious dog, which he knew to be dangerous, vicious, and inclined to bite mankind, and which he allowed to go unrestrained and at large; that on the 26th day of September, 1902, this dog went upon the premises and into the residence of the intestate’s father in the city of Louisville, without tlieknowlédge of the father, and attacked, bit and mangled appellant’s intestate, by. reason of which she endured intensé pain, suffering, and agony, both bodily and mental, for thirty-five days, when she died; and asked damages of the appellee.

The appellee answered, and did not deny any of the allegations of the petition, but alleged, in substance, that Theresa Rosa Meyer, appellant’s intestate, was an infant, and died about the 1st of November, 1902, unmarried, and without issue, leaving no estate of any kind, except the alleged claim asserted in the petition, and leaving no debts; that she left surviving her a father, John H. Meyer, who asserted against the appellee the same cause of action set up in the petition, and that appellee denied and disclaimed any responsibility or liability thereupon; that by the statute in such cases made and provided the mother and father of appellant’s intestate were the exclusive beneficiaries of the alleged cause of action asserted in the petition; that on the 2d day of October, 1902, this appellee and John H. and Theresa Oswald Meyer, the parents of appellant’s intestate, compromised and settled all claims against and liabilities of appellee by reason of their child’s death and the alleged .injury received by her, and signed and delivered a receipt acknowledging full satisfaction thereof, as follows:

“Louisville, Ky., Oct. 2, 1902.

“Know all men by these presents: that we, John H. and Theresa Meyer, being husband and wife, and the parents of Theresa Rosa Meyer, do hereby, for and in consideration of the sum of $500, the receipt of which is hereby acknowledged, do on behalf of ourselves and each of us and of our said child, hereby remise, release' and forever discharge George Zoll, of the city of Louisville, county of Jefferson and State of Kentucky, his heirs, executors and administrators, of and from all actions and causes of actions, suits, claims and demands whatsover, in law or in equity, and especially from all claims and demands arising from an alleged injury of Theresa Rosa Meyer, the said child of the said John H. Meyer and Theresa Meyer, which occurred at 501 E. Kentucky street, Louisville, Ky., on or about the 26th day of September, 1902, which the said John H. Meyer and Theresa Meyer have had, now have, or which their heirs, executors, administrators, or assigns, or any of them, now have, hereafter can, shall or may have for or by reason of the said alleged injuries, or for any cause, matter or thing whatsoever.

“In witness whereof we have hereunto set our hands this 2d day of October, 1902.

“[Signed] John H. Meyer,

“Theresa Oswald Meyer."

Appellee further alleged that at the time appellant Dean wms appointed.and qualified as the administrator of Theresa Rosa Meyer, she had left no estate of any kind or character, and that the appointment of appellant as such administrator was null.and void, and that he had no right to prosecute this claim, inasmuch as the parents of his intestate and the sole beneficiaries were fully paid and satisfied as to any and all claims which might exist against appellee for their use and benefit. The court overruled a demurrer to 'this answer.

Appellant filed a reply in .effect, denying that his intestate’s parents had compromised and settled the matters sued for in this action, and alleged that the receipt or writing cojued herein was obtained by the fraud of appellee. •The acts of fraud were specifically stated, but are not necessary to a determination of this appeal, and are therefore omitted. The appellant also stated that at the time the receipt was executed the child appeared to be improving, had every appearance that it would recover from its injuries, and that they were assured by the appellee that the dog which injured the child was free from hydrophobia or any disease, when in fact he was afflicted with such a disease, and inoculated the child, and that it died from hydrophobia within thirty days from that time; and asked that the alleged compromise and receipt be declared void. The court sustained a demurrer to this reply. Other pleadings were offered by appellant, which the court refused to allow to be filed.

Under, our view of the principles governing this case, we deem it unnecessary to refer to them further. We are of the opinion that the court should have sustained a demurrer to the answer of appellee, as it did not state any defense to the cause of action stated in the petition. Appellant, by his petition, sought to recover of the appellee damages for the pain, suffering, and anguish endured by his intestate from the time she was bitten and lacerated by this dog until the date of her death, a period of about •thirty-five days, which cause of action survived to her personal representative, under section 10 of the Kentucky Statutes of 1903. The parents of this child never at any time had any right of action for the pain and suffering of their child. This right existed in the child alone, and survived upon its death as stated. The parents had no right to compromise or settle with appellee for this cause of action, because at the time of this pretended settlement or compromise they had no beneficial or other interest in the cause of action stated, and no attempt on their part to settle for tlie child or for themselves for the pain and suffering endured by it prior to- its death was void. The parents’ interest in the cause of action stated in the petition was not in existence at the time of this pretended settlement. In 4 Bush, 358, in the case of McBee v. Myers, etc., the court said: “But it is insisted in support of the judgment that the contract relied upon by appellant is of ho effect and void, because the subject-matter of the contract at the time was not in esse; that it had neither an actual nor a potential existence, and was a mere hope or contingency, founded upon no right, and coupled with no interest, and, therefore, could not be the subject of a contract. This we recognize not only as the doctrine of the common law, but as being authoritatively settled by the adjudication of this and other courts.” If the allegations of the petition were true, the parents did have á cause of action at the time of the alleged compromise, in that they had the right to recover for the nursing, attention and medical bills bestowed and incurred in endeavoring to restore the child to health, and that it must be presumed that this was the meaning and extent of the settlement made, for at that time it was not expected nor contemplated by the parents that the child would die by reason of its injuries, and the interest sued for herein was not in the minds of the parties at the time of the execution of the receipt referred to.

Appellant cites in support of the settlement pleaded the following authorities: Doyle v. N. Y., etc., R. Co. (Sup.) 72 N. Y. Sup., 936; Mattoon, etc., Co. v. Dolan, 105 Ill. App., 1; Christie v. Chicago, etc., R. Co. (Iowa) 74 N. W., 697; Dowell v. Burlington, etc., R. Co. (Iowa) 17 N. W., 901; Sykora v. The Case Threshing Mach. Co. (Minn.) 60 N. W., 1008; Prater v. The Tenn., etc., Co. (Tenn.) 58 S. W., 1068; Vail v. Anderson (Minn.) 64 N. W., 47. We have carefully examined each and all of these authorities, and find that in all of them the settlements were made with the beneficiaries after the death of the party injured; some few of them before administration and some after. But in all of the cases the parties settled and compromised with had then a vested, beneficial interest at the time of the settlement — that is, their interest in the estate were m esse — and therefore the cases have no application to the question involved in the action at bar.

For these reasons the judgment of the lower court is reversed, and cause remanded for further proceedings consistent herewith.

Petition for rehearing by appellee overruled.