|Miller's Adm'x v. Picard|
|191 S.W.2d 202|
|Dec. 11, 1945.|
Appeal from Knox Circuit Court, Knox County; Flem D. Sampson, Judge.
Action by Reathy Burgess, administratrix of the estate of Mary Miller, deceased, against John Picard to recover for the wrongful death of decedent caused by defendant when he shot into taxicab in which decedent was riding, which action was commenced after the execution of a release to the cab driver. From a judgment of dismissal, plaintiff appeals.
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 a full release of one of them bars any action against the other. In the opinion it is said: 'A person injured by a joint tort has a single and indivisible cause of action. He may proceed against the wrongdoers either jointly or severally and may recover a judgment or judgments against all, but he can have but one satisfaction of his single cause of action. Neither may he split his cause of action.'
Here there is only one injury and therefore there is only one cause of action. If the two contributors to the injury are joint tort-feasors the administratrix could have sued either or both of them, but under the authority hereinabove cited it seems clear that satisfaction of the claim by one discharges the other from liability.
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 not acted in concert and separate and distinct injuries are caused by the acts of each, the liability is several only. It is also true that where independent wrongful acts of two or more persons concur in contributing to and producing a single injury, such persons must be regarded as joint tort-feasors. If this were not true there would be no basis for the long established rule in this state that the contributing negligence of the drivers of two automobiles, having caused an injury to a third person, gives rise to a joint cause of action against either or both of the drivers. The many cases which have been written on this subject give rise to confusion when a close and difficult case is presented for consideration, but a careful consideration of many authorities in this and other jurisdictions has led us to the conclusion that the principles herein set forth are correct.
It is apparent from what we have said that the judgment of the lower court was correct and it is accordingly affirmed.
MILLER'S ADM'X v. PICARD
191 S.W.2d 202, 301 Ky. 157
Last Update Tuesday, 18-Dec-2012 01:36:01 EST
Copyright © 2015 by the KYGenWeb Team. All
rights reserved. Copyright of submitted items
belongs to those responsible for their authorship or
creation unless otherwise assigned.