Owensboro & Nashville Ry. Co. v. Barclay's Adm'r.

be considered together, and when this is done in this case, it is manifest that instruction 5 does not amount to a peremptory instruction.

3. Under the provisions of section 241. there may be a recovery for gross negligence. L. & N. Ry. Co. v. Kelly's Administratrix, 100 Ky., 421.

JOHN S. RHEA AND CRADDOCK & SANDIDGE OF COUNSEL ON SAME SIDE.

JUDGE DURELLE DELIVERED THE OPINION OF THE COURT.

Hugh Barclay, Jr., was a fireman on the railroad of appellant, and had been so employed for some time previous to June 5, 1892. On that day a change of schedule went into effect at 7 o'clock p. m. By the old time card the regular train for Owensboro left Russellville at 7:25 a. m. By the new time card the starting time was made twenty minutes later. Barclay was acting as fireman on an excursion train from Owensboro to Bowling Green, by way of Russellville. The engineer and conductor of the excursion train, under whose orders Barclay was acting, misunderstood the time card, and, supposing it to have gone into effect at 7 a. m. of that day, instead of 7 p. m., failed to stop at the proper station to permit the regular train for Owensboro to pass, which failure resulted in collision between the two trains, near South Carrollton Barclay was frightfully mangled and scalded in the collision, and died about two hours afterward. Appellee qualified as Barclay's administrator, brought suit for damages against appellant, and recovered a verdict and judgment for $15,000, to reverse which this appeal is prosecuted.

The first question raised, in logical order, is the right of appellee to bring the suit, the point being made that the

Owensboro & Nashville Ry. Co. v. Barclay's Adm'r.

bank, which was by law authorized to act as administrator, was appointed by a special judge elected in pursuance of the provisions of the act of May 11, 1892, and that that act "was not adopted pursuant to the provisions of the Constitution of Kentucky, and that it is for that reason, among other reasons, unconstitutional, null and void." It was made to appear from the journals of the House and Senate that the act, upon its passage in the House, received the votes of two-fifths of the members elected, a majority of the members voting, and the vote being taken by yeas and nays and entered in the journal, in accordance with section 46 of the Constitution. It was amended in the Senate by the insertion of a provision that the pay of the special judge should not be taken out of the regular judge's salary, but out of the county levy, and was passed by that body in accordance with section 46. Upon the question of the House concurring in the Senate amendment, the journal does not show that the vote was taken by yeas and nays, nor does it appear by what majority the amendment was concurred in, nor was the vote entered in the journal; but it was enrolled as amended, signed by the speaker, and signed and approved by the Governor. Without stopping to pass upon the sufficiency of the pleading in which this objection is made, under the rule laid down in Norman, Auditor v. Board of Managers, 14 Ky. Law Rep., 529, it is sufficient to say that, in Lafferty Huffman, 99 Ky., in a well-considered opinion

V.

*

by Judge Hazelrigg, it was held: ** "That the enrolled bill, when attested by the presiding officers as the law requires, must be accepted by the courts as the very bill adopted by the Legislature, and that its mode of enactment was

Owensboro & Nashville Ry. Co. v. Barclay's Adm'r.

in conformity to all constitutional requirements. When so authenticated it imports absolute verity and is unimpeachable by the journals."

A further objection urged to the right of appellee to prosecute the action is the averment in the answer that the father of Hugh Barclay, Jr., had, previous to the order appointing appellee administrator, applied to the county court to be appointed; that the same order which appointed appellee denied the father's application, and he thereupon took an appeal from the order, executed a supersedeas bond, and took all other necessary steps to bring up the judgment and proceeding of the county court to the circuit court for review and reversal, and that said appeal was then pending in the circuit court. This pleading, however, does not state that a supersedeas was ever issued. Unless a supersedeas was issued there was no stay of proceedings upon the judgment appealed from. Under the act of May 5, 1880, the circuit court has appellate jurisdiction of all orders or judgments of the county court granting, revoking or refusing letters of administration (Carroll's Code, page 379). By the act of May 15, 1886, the time and manner of taking such appeals is governed (Carroll's Code, 380) by the provisions of the Civil Code of Practice regulating appeals from said courts. Section 724 provides the manner of taking the appeal, and provides for the issuance of a supersedeas or order to the judge rendering the judgment to stay proceedings thereon. We regard the issuance of the supersedeas as a necessary averment.

It is urged as a reversible error that the trial court denied an application for a change of venue. It is unnecessary for

Owensboro & Nashville Ry. Co. v. Barclay's Adm'r.

us to consider whether the trial court erred in deciding that appellant could obtain a fair and impartial trial in Logan county. The statute then in force (which was the act of April 9, 1880, amending General Statutes, chapter 12), provides: "The action of the court in refusing or granting such change of venue shall be final and without appeal."

It is insisted, however, that this provision is a mere delaration that no appeal could be taken from an order granting or refusing a change of venue, but that an erroneous decision of the question is, nevertheless, a reversible error after final judgment. But such an order would clearly not have been a final order, from which an appeal might be taken, had there been no such declaration in the statute; and the language used, "shall be final and without appeal," clearly indicates the legislative intent to be that such order should not afford ground for reversal. Moreover, by an act which went into effect five days after the order complained of, the Legislature dropped from the statute the language above quoted, and provided that the court "shall exercise a sound discretion in deciding the question," indicating the legislative construction to be in accordance with the view here given. And the Superior Court, in Howard, &c., v. Dietrich, 11 Ky. Law Rep., 235, considering this statute, which was then in force, held that the refusal of the court to grant a change of venue in a civil case can not be reviewed on appeal. It is earnestly urged, however, that the motion for a new trial, which was made after the new statute went into effect, at a subsequent term, gave the trial court an opportunity to correct the error which it is claimed was made in denying the change of venue. We should be slow,

Owensboro & Nashville Ry. Co. v. Barclay's Adm'r.

however, to conclude that the Legislature, by the passage

of the new act, intended to make a previous act of a court reversible error, which was not so when the action was taken.

It is further claimed that section 241 of the present Constitution, under which it is conceded the action was brought, is in violation of the provisions of the fifth amendment to the Constitution of the United States, providing that "no State shall make or enforce any act which shall abridge the privileges or immunities of any citizen of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law;" that if this section of the Kentucky Constitution is construed as giving the right of recovery for death caused by negligence or wrongful act to any person who had not a legal pecuniary interest in the life of the deceased, it is in conflict with the Federal Constitution, as depriving the person by whose negligence the death was caused of his property by arbitrary fiat of the Constitutional Convention; that in this case the deceased, being a young man of nineteen, unmarried and childless, no person had any legal claim upon him, or any pecuniary interest in his life, except his father, and that only for the period to elapse before he attained his majority; and it is claimed that a construction of section 241 which allows any relative having no legal, pecuniary claim upon the deceased to recover damages for his death is a taking of private prop erty from one person for the private use and benefit of another person, which can not be done by constitutional provision, general law or special enactment. But it has never been held, so far as we are informed, in any of the States