191 S.W.2d 202 | Ky. Ct. App. | 1945
Affirming.
On the 10th day of November, 1943, Mary Jane Miller employed Joe Sprinkles, the owner and operator of a taxi cab in Knox County, to transport her from Barbourville to Fount, and paid the regular charge therefor. On the return trip the sheriff of Knox County, who held a warrant for the arrest of Sprinkles, undertook to stop the taxi cab for the purpose of the arrest. Instead of stopping, Sprinkles attempted to run over the sheriff, which caused the sheriff to shoot at and into the cab, killing the passenger Miller.
Reathy Burgess qualified as administratrix of the estate of Mary Jane Miller, and on the 25th day of January, 1944, filed an action against Sprinkles in the Knox Circuit Court by which she sought to recover for the estate the sum of $10,000. While this suit was pending the parties settled for the sum of $350, upon the payment of which the administratrix executed a full and complete release.
Thereafter the administratrix employed a different attorney and on the 9th day of November, 1944, the present action was instituted against the sheriff. By an amended answer the previous action and the settlement of it were pleaded as a complete bar to this one. The circuit court overruled a demurrer to the amended answer and when the administratrix declined to plead further, the court dismissed the petition, from which judgment this appeal was taken.
The question for determination in this case is whether the taxi cab driver and the sheriff were joint tort-feasors, for if they were the settlement with and *159
a full release of one of them bars any action against the other. In the case of Eberle v. Sinclair Prairie Oil Company, 10 Cir.,
Substantial authority is cited to support this statement, and that same rule was approved by this court in the case of Oglesby v. Melcroft Coal Company,
In the more recent case of Sherwood v. Huber Huber Motor Express Company,
The measure of damages in an action for wrongful death is the amount of loss to the estate of deceased because of the destruction of his power to earn money. Wilkins v. Hopkins,
Thus the only remaining question in the case is whether the taxi cab driver and the sheriff were joint tort-feasors. Under the facts related above it is clear that the wrongful death was caused by the joint action of the two. Except for the combined actions of both, the injury and death would not have occurred. However, it is likewise clear that there was no concerted action on the part of the two wrongdoers, and the question for determination is whether or not absence of concerted action on the part of the wrongdoers will give rise to separate and independent causes of action against each. The weight of authority is to the effect that liability exists notwithstanding the absence of concerted action. It is true that where the wrongdoers have *161
not acted in concert and separate and distinct injuries are caused by the acts of each, the liability is several only. Wilder v. Bailey,
It is apparent from what we have said that the judgment of the lower court was correct and it is accordingly affirmed.