Givens v. Berkley. Unless Dr. the boy had been dismissed from school. Kenyon, after a sufficient examination of the boy's head, was able to state that the skull had been fractured, no testimony should have been allowed as to the probable damage which would result from such an injury. It was error to allow the plaintiff to introduce any proof as to defendant having caused the indictment of Miss Brashear. No proof in regard to such proof of indictment on trial should have been admitted. No evidence in regard to any conveyance made by defendant to his wife should have been admitted. The first instruction given by the court is substantially correct, with the exception that it does not sufficiently show that the defendant had a right to throw, if it reasonably appeared to him to be necessary, and that he did so believe, in order to save his life or his body from great harm, or to so save the life or body of his son, R. Lee Givens. It would also have been proper to have said that, if the conditions indicated were shown to exist, then the jury should find for the defendant. Under the pleading in this case, the burden of proof was clearly upon defendant, and he was entitled to conclude the argument. Goldsberry v. Stuteville, 3 Bibb, 346. Also, see Railroad Co. v. Brown, 13 Bush, 475; Crabtree v. Atchison, 93 Ky., 338, (20 S. W., 260); Walls v. Robb, 15 Ky. Law Rep., 159. It is alleged that the attorney for plaintiff stated in his argument to the jury that the defendant was worth $10,000, and of this, appellant complained. It does not appear that the statement complained of was excepted to at the time, and besides, there was some proof introduced or attempted to be introduced tending to show that the defendant was a man of considerable wealth. It does not satisfactorily appear that proper exceptions were taken to Givens v. Berkley. that evidence. But, inasmuch as the case must be reversed, we deem it proper to consider and determine as to the competency of such testimony. It is true that in Gore v. Chadwick, 6 Dana, 478, this court seems to have recognized the competency of such evidence, but seems to have given it but a passing notice, and regarded it as not affecting the verdict of the jury. We quote as follows from the opinion: "The circuit court permitted the plaintiff in the action to prove that the defendant was worth between $15, 000 and $20,000, and we are of the opinion, also, that this, though novel, was not erroneous. In such an action the jury have a right to know the condition of the parties; and, if such testimony as that here objected to could tend to produce an exorbitant verdict, there is no doubt that in this case it had no such effect. And, therefore, as the only ground of reasonable objection to such evidence would be that it might excite the passions of the jury, and the evidence in this case could not have had such influence, the admission of it furnishes no cause for reversing the judg ment." The court further says that the damages assessed should be deemed moderate. The superior court, in Cros by v. Bradley, 11 Kentucky Law Reports 954, held that in an action for assault and battery evidence as to the amount of defendant's estate was competent, referring, however, to no authority except to the case of Gore v. Chadwick, supra. In Railroad Co. v. Mahony's Adm'x, 7 Bush, 238, this court said: "With reference to the objection that testimony was admitted as to the pecuniary condition of the appellant, we deem it sufficient to say that in this case, as in other cases for the recovery of punitive or exemplary damages, it was not improper to allow proof of the pecuniary ability of the defendant." No authority is quoted in support of this last opinion, nor did the court 1 Givens v. Berkley. discuss the question. If it be competent in such cases to admit evidence as to the wealth or ability of the defendant to pay, it seems to us inevitable that proof should be admitted to show his poverty or inability to pay, and, incidental thereto, it would be proper to show what family was dependent entirely upon him for support. The tendency of this class of testimony would be to lead the jury to consider chiefly the pecuniary condition of the defendant, rather than the enormity or wantonness of the act for which punitive damages might be allowed. And, if pecuniary condition of the defendant can be proven for the purpose of influencing the verdict of the jury, it would seem that like evidence should be admitted as to the plaintiff. After a careful consideration of this question, we are clearly of the opinion that no evidence as to the financial condition of either defendant or plaintiff should be admitted in any case in which punitive damages might be recovered. To the extent that the decsions herein before referred to conflict with this opinion, the same are overruled. It is said in the notes in 5 Am. & Eng. Enc. Law, p. 65: "Although there are some authorities to the contrary, the wieght of authority is that neither the pecuniary circumstances of plaintiff nor of the defendant are admissible on the question of the amount of damages." For the reasons indicated, the judgment appealed from is reversed, and cause remanded for a new trial upon principles consistent with this opinion. Maysville & B. S. R. R. Co. v. Ball, et als. CASE 35-ACTION TO ENFORCE JUDGMENTS-MARCH 29. Maysville & B. S. R. R. Co. v. Ball & Others. APPEAL FROM MASON CIRCUIT COURT. JUDGMENT FOR PLAINTIFF AND DEFENDANTS APPEALED. AFFIRMED. ENFORCEMENT OF JUDGMENTS-COLLATERAL ATTACK ON JUDGMENT-IN- Former opinion in this case is found in 43 S. W., 731. Held: 1. Ball and others entered into a contract with the defendant company to furnish, provide and cause to be conveyed to it, suitable rights of way for its line of railroad from Ashland to the eastern boundary line of Campbell county of the width already located by its engineer. This agreement constitutes no defence to the enforcement of a judgment for damages in favor of one of the obligors for interference with the access to his property and the throwing of soot and cinders thereon in the construction and operation of the railroad through his land. The defense, if available at all, should have been pleaded in the action in which the judgment was rendered. 2. Such contract does not relieve the railroad company from its liability to pay the obligor for his property outside the "right of way," which has been taken by so constructing and operating its road on the right of way as to interfere with his easement of access, and to the injury of his buildings. 3. The amendment to Civil Code, sec. 51, providing that service of summons on the person or corporation controlling or operating a railroad shall be treated as service on the defendant corporation owning or constructing the railroad, where summons can not be served on such defendant, and the appearance of the defendant for the purpose of moving the quashal of the service of summons shall operate as an appearance for all purposes, is not unconstitutional. 4. The entry of the appearance of the defendant for the purpose of objecting to the jurisdiction of the court should be treated as a motion to quash the service of the summons, and under said amendment to the Code, it had the effect to enter defendant's appearance for all purposes. Vol. 108-16 108 2411 116 588 108 2411 116 588 108 241 f128 128 108 241 132 351 Maysville & B. S. R. R. Co. v. Ball, et als. 5. The defendant can not avail itself of any defense to the enforcement of a domestic judgment, by reason of non-service of process, unless such fact appears in the record, and such fact must be pleaded. WADSWORTH & COCHRAN, ATTORNEYS FOR APPELLANT. CLASSIFICATION OF QUESTIONS DISCUSSED. 1. As to appellees, Boyd and husband and Nelson et al. (1.) The personal judgments in their favor against the M. & B. S. R. R. Co. are void because summons served on agent of the C. & O. Ry. Co., and it did not appear by the return of the officer on the summons or by affidavit that it could not have been served on M. & B. S. R. R. Co. under existing laws. Act of May 10th, 1890, Sess. Acts 1889-90, vol. 1, 135; 22 Am. & Eng. Enc. of Law, 182-148; Colton v. Ruper, 60 Mich., 328; 2 Enc. Pl. and Prac., 226; Fisk v. Hunt, 54 Prac., 660; Brownfield v. Dyer, 7 Bush, 505. (2.) Determination by court that it has jurisdiction to render a judgment by default is not res adjudicata in another action if as a matter of law it did not have jurisdiction, a. The following authorities are not contrary to this proposition: 1 Freeman on Judgments sec. 130; Williams v. Haynes, 19 Am. St. Rep., 752; Cullen v. Ellison, 82 Am. Dec., 448; 1 Smith's Leading Cases, 1128; Borden v. State, 54 Am. Dec., 235. b. The following authorities and others cited subsequently support this proposition: 1 Black on Judgments, sec. 274; 1 Freeman on Judgments, sec. 130. (3.) a.-Domestic judgment rendered by a court of general jurisdiction can not be collaterally attacked. It will be presumed that all steps necessary to confer jurisdiction were taken unless the contrary appears of record. Newcomb v. Newcomb, 13 Bush, 562. b. This is not the law everywhere. 1 Black on Judgments, sec. 275. c. Not correct as matter of principle and logic. 1 Black on Judgments, sec. 276; Bigelow on Estoppel, (5th edit.), 203 note; Brownfield v. Dyer, 7 Bush, 505, 95 Ky., 173. d. This doctrine also applies in this State where proceedings are not conducted according to the course of common law. Newcomb v. Newcomb, 13 Bush, 562. e. But this is not in accordance with the weight of authority elsewhere. 1 Black on Judgments, 281; Bigelow on Estoppel (5th edit.), 204, 205. |