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Mouser v. Nunn, et al.

(Decided March 9, 1911.)

Appeal from Metcalfe Circuit Court.

Guardian and Ward-Action Against Heirs at Law of GuardianDate Limitation Must be Computed From.-In an action against the heirs at law of a guardian to recover on a settlement as guardian, limitation must be computed from the date at which money came into the guardian's hands, and more than thirty-two years having elapsed from that date until suit was brought, the action was properly dismissed.

Same-Husband of Ward-Marriage of Ward-Right of Action of Husband against Guardian.-Under the statute in force at the time of the marriage of the ward (1875), she was entitled to demand a settlement on the part of her guardian, and her husband had a right of action against the guardian, and limitation ran against him from the date of that settlement.

J. W. COMPTON for appellant.

BAIRD & RICHARDSON and J. W. KINNAIRD for appellees.

OPINION OF THE COURT BY JUDGE LASSING-Affirming.

P. J. Nunn was appointed guardian of Nancy T. Landon in February, 1869. He made four settlements as such, the last on March 30, 1875. His ward, while under fourteen years of age, married one D. A. Mouser in 1873. P. J. Nunn died in 1906, and in September, 1907, Nancy T. Mouser brought suit against his heirs-at-law to recover of them the sum of $376.75 (this being the amount shown to be due her by the settlement of March 30, 1875), with interest to date. The answer contained, besides a traverse, a plea of payment and also a plea of the statute of limitation. On these issues proof was taken and the case submitted for judgment. The chancellor was of opinion that the plaintiff was not entitled to the relief sought, and dismissed her petition. She appeals.

According to the pleadings, no money came to the guardian's hands after June 18, 1875, and limitation must be computed from that date. So that more than thirtytwo years have elapsed before suit was brought. To avoid the operation of the statute it is pleaded that appellant was a married woman in 1875, and had been such at all times thereafter up to the date of the filing of her suit. Under the statute then in force, General Statutes, section 12, article 1, chapter 48, upon her marriage she

was entitled to demand a settlement on the part of her guardian, and upon such settlement her husband was entitled to demand and receive the money due her. Beaxley v. Harris, 1 Bush, 533; Brown v. Adkinson, 22 Rep., 649; Hargis v. Sewell's Admr, 87 Ky., 63. Her husband had a right of action against the guardian, and the limitation ran against him from the date of that setlement.

This identical question was decided in Hargis v. Sewell's Admr, in which, in disposing of a question in many respects similar to that under consideration. This court said:

"The husband, in right of the wife, or in his own right, could have settled, receipted for and collected this money at any time after the settlement. He was entitled to this fund by reason of the marriage, and the statute began to run as soon as this settlement took place."

In that case, at the time the settlement took place, the beneficiary was married, and yet the court held that, inasmuch as her husband was entitled to this money, she could not avoid the effect of the plea of the statute of limitations by reason of her coverture.

In the case under consideration the parties lived in the same neighborhood. Appellant seeks to account for her failure to sue by pleading that she did not know, and could not, by the exercise of reasonable diligence, have discovered sooner than she did that her guardian was indebted to her. This plea is of no avail, for the statute which permits a recovery on the ground of fraud or mistake expressly provides that no suit for relief for fraud or mistake shall be prosecuted after the lapse of ten years from the time the fraud was perpetrated or the mistake made. Kentucky Statutes, section 2519.

We are of opinion, however, that appellees are not driven to shelter under the plea of the statute of limitation and in this way to seek to relieve themselves of liability, for in support of their plea of payment they filed a number of receipts, signed by appellant and her husband; and one, dated August 23, 1875, signed by her husband alone, which is in words and figures as follows:

"I hereby acknowledge receipt of all moneys that have ever been due from J. P. Nunn to me or my wife upon claims which he had in his hands as guardian of Nancy T. Landon who is my wife. August 23, 1875."

The signature to this receipt is attested by John U. Young, who, at the date of the trial, was still living. No effort was made either to impeach the genuineness of the

signature of appellant's husband, or to show that the receipt was other than what it purported to be. It is inmaterial that appellant was not advised that her husband had receipted to her guardian for all moneys due her. This he had a perfect right to do without her knowledge or consent, and the guardian had a legal right to pay over to her husband any money that was due her. Having done so, the guardian is exonerated from further liability to his ward.

We are of the opinion that the plea of the statute was well taken, and the proof in the case abundantly supports the defense of payment. The chancellor correctly held that the claim was barren of equities, and his judgment dismissing the suit is affirmed.

Illinois Central Railroad Co., et al. v. Moss' Admr.

(Decided March 9, 1911.)

Appeal from McCracken Circuit Court.

1. Railroads Killing Person at a Crossing—Instruction in Action for Damages-Dangerous Crossing-Knowledge of Deceased.-In an action for damages against a railroad company by the administrator of one who was killed at a railroad crossing an instruction was given to the jury that it was the duty of the deceased in attempting to cross the track to use that degree of care that an ordinarily prudent and careful person would use in undertaking to cross over the track ander like or similar circumstances, and that if the jury believed that the crossing was unusually dangerous and deceased knew it, then it was his duty to exercise such increased care to avoid injury to himself as was commensurate with the increased danger. Held, this instruction did not require the deceased to exercise increased care for his own safety, in going over the crossing unless he knew it to be unusually dangerous. It did not put upon him the burden of exercising care to discover this fact.

2. Negligence of Trainmen-Failure to Give Signals.-Where the negligence that resulted in the death of plaintiff's decedent was the failure of those in charge of the railroad train to give the proper signals or warning of its approach to the crossing, and if those in charge of the train failed to meet the requirements of the law and discharge their duty in this particular the company is answerable for such injuries as resulted.

3.

Same-Character of Negligence.-Where a train that killed deceased at a railroad crossing was approaching the crossing under

the usual rate of speed at which freight trains travel, and according to the evidence of appellee failed to give the usual signals of its approach, this was not gross but ordinary negligence.

C. L. SIVLEY, TRABUE, DOOLAN & COX and WHEELER & HUGHES for appellants.

HERRICK & CRICE and HAL. S. CORBETT for appellee.

OPINION OF THE COURT BY JUDGE LASSING-Affirming.

On June 30, 1909, Bennett V. Moss, a man about seventy-six years of age, while attempting to cross the tracks of appellant company at Fortson crossing in McCracken county, was struck by a train and killed. His administrator sued to recover for his death. The appellant company denied liability and pleaded contributory negligence. Upon these issues, the case was submitted to a jury, which returned a verdict in favor of plaintiff for $2,500. The company appeals.

The public road and the railroad approaching the crossing run in practically the same direction, the road crossing the railroad at an angle of about thirty-five degrees. In approaching the crossing in the direction in which deceased was going, his back would be toward the train for some distance before reaching the crossing, and almost so when passing over the crossing. The railroad enters a cut west of this crossing a few hundred feet before reaching it, and the highway also enters a cut west of the crossing for quite a distance before reaching it. Where they cross each other the cuts come together, and at that point they are from five to seven feet deep. At the time the accident occurred there were several box cars standing upon a side track at that point, and these, together with orchard trees which were growing upon a strip of ground between the railroad and the public road approaching this crossing, tended to obscure the view, so that it would be difficult for one approaching this crossing as deceased was to see the train going in the same direction until he had almost entered upon the track. The testimony shows that a man in a buggy approaching the crossing could not see a train until within the right of way his horse would be practically upon the track before he could get a view of the road. In other words, after he had come out upon the crossing he could see, and not until then. Those in charge of the train, and one other witness, who saw the accident, testify that de

ceased drove upon the track at a time when the train was so short a distance away that no amount of care upon the part of those in charge of it, after they saw him upon the track, could have prevented the injury. The mule which was drawing the buggy crossed over the track. The buggy was struck and deceased thrown therefrom and killed.

The negligence relied upon to support a recovery is that there were no signals of the train's approach to this crosssing given. The company introduced a number of witnesses, who testify positively that the proper signals were given, while appellee introduced as many or more witnesses, who say that no signals whatever were given. It is conceded that the crossing in question is, because of its location, a peculiarly dangerous one. locality is thickly peopled and the road much traveled. On this evidence the trial court refused to give a peremptory instruction, but submitted the case to the jury. And in this was undoubtedly correct.

The

Appellant's chief complaint is that the court erred in defining the duties which deceased owed himself for his own protection in approaching the crossing. That, as this crossing is shown to be a dangerous one, deceased should have been required to exercise a degree of care for his own safety commensurate with that which the court told the jury the appellant company was required to use in approaching this crossing. Technically considered the instruction is subject to this criticism. It is not as full and explicit as it might have been. Still, we are of opinion that in the form in which it was given it was not misunderstood or misconstrued by the jury. For in it the jury is told that it was the duty of deceased, in attempting to cross the track, to use that degree of care that an ordinarily prudent and careful person would use in undertaking to cross over the track under like or similar circumstances, and that if the jury further believed that the crossing was unusually dangerous, and deceased knew it, then it was his duty to exercise such increased care to avoid injury to himself as 'was commensurate with the increased danger, &c. This instruction did not require of him to exercise increased care for his own safety in going over this crossing unless he knew it to be unusually dangerous. It did not put upon him the burden of exercising ordinary care to discover this fact. But if deceased lived in that community, as he doubtless

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