City of Louisville v. Woolley, et als.

ed that actions of that character could be revived forthwith, under the provisions of section 506 of the Code, against her heirs at law, or that they could not have been revived at any time within 12 months after the qualification of her personal representative. Such a construction would lead to holding that in an action to enforce a contract lien on the real property of a defendant who is sui juris it could not be revived until six months after the grant of administration, while in such actions, where the defendant and owner of the property sought to be subjected was a person under a disability, the revivor could be made forthwith, and must be made within one year from the death of such defendant. While the lien sought to be enforced in this action is not a contract lien, or one for which a personal judgment could have been rendered against Mrs. Woolley, it is none the less a lien upon the property sought to be subjected to secure the payment of the tax bills sued on, and which are placed by the statute of May 12, 1884, so far as their collection is concerned, upon precisely the same footing as debts due the city arising by contract; and the personal property or choses in action which belonged to her at her death, and passed to her administrator, are, by the statute, made subject to the satisfaction thereof. The administrator has the right to test the validity of the tax bills sued on as a claim against his intestate's property, or to pay them out of the personal assets in his hands, if sufficient to do so, and thus prevent a sale of the realty, and this court has repeatedly held that he would be entitled to credit for such payments in his settlement as administrator. It is a well-established policy in our revenue system that the personal property of a taxpayer should be first exhausted before resorting to a sale of his real estate, and it has

City of Louisville v. Woolley, et als.

been held by this court that it was the duty of the personal representative to pay the taxes upon the real estate of a decedent out of the proceeds of personalty in his hands. See Howle v. Anderson, 44 S. W. 437; Thrasher v. Lewis, 13 Kentucky Law Reports 926. And in the case of Sales v. Cosgrove (Ky.) 25 S. W. 594, it was held that where an heir paid the taxes to the city of Louisville on the real estate of a deceased married woman such heir was entitled to recover same from the administrator out of the proceeds of the real estate; and in the very recent case of Nesbit v. Wood (decided at the present term) 56 S. W. 714, it was held that where the widow of a deceased person paid the taxes assessed against land in order to discharge a levy made by the sheriff upon personal property which had been set apart to her she was entitled to be reimbursed out of the proceeds of the real estate. we see it, this is not an action for the recovery of real property sought to be subjected, nor does it concern or affect the rights of appellees thereto. Neither their title, right, nor ownership is disputed. On the contrary, it is not only admitted, but asserted. This is nothing more which is made by stat

As

than an action to enforce a claim ute a lien upon the real property sought to be subjected, and the administrator of Mrs. Woolley was a proper party to the proceeding, and the right to revive the action did not accrue to plaintiff until six months after the grant of administration. The trial court erred in overruling the motion to file the petition of revivor.

The heirs at law are also necessary parties, and the proceeding could have been revived against them. See Gardner's Adm'r v. Roberts, 4 Kentucky Law Reports 614; Greer v. Powell, 1 Bush, 489. The second amended or supplementary petition offered sought to subject the

City of Louisville v. Woolley, et als.

life estate of appellee R. W. Woolley as tenant by the curtesy to the payment of the tax bills sued for. No revivor was necessary against him. He was a party to the suit from the beginning, and had filed his answer. As husband, he had acquired, during the marriage relation between himself and decedent, a vested interest in all of her real property by the birth of living issue, which became perfected by the death of the wife, and he took this interest as the heirs at law took the interest which they inherited from their deceased mother, cum onere. And this interest of the life tenant, like the interest which descended to the heirs at law, was covered by the statutory lien in favor of the tax bills assessed against the property, and, if necessary, could be subjected to their payment. We think the trial court also erred in overruling the motion to file this supplementary petition. For the reasons indicated, the judgment appealed from in both actions is reversed, and cause remanded for proceedings consistent with this opinion.

Judges Guffy and DuRelle, dissent.

Petition of appellee for rehearing overruled.

Memphis & Cin. Packet Co. v. Buckner.

CASE 94-ACTION FOR PERSONAL INJURIES-JUNE 13.

Memphis & Cin. Packet Co. v. Buckner.

APPEAL FROM KENTON CIRCUIT COURT.

JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. AFFIRMED.

TRIAL SENDING JURY TO VIEW PREMISES STEAMBOAT CARRIER-CARE REQUIRED AS TO SHIPPER WHO FEEDS HIS STOCK-CONTRIBUTORY NEGLIGENCE.

Held:

1. In an action to recover damages for injuries received from falling into an open hatchway on a boat, it was discretionary with the court to send the jury to view the boat.

2. A shipper of stock who is carried on a steamboat on condition that he is to care for his stock, is entitled to the same care as other passengers; and therefore it was negligence as to such a passenger to leave a hatchway open, unlighted and unguarded, without any warning to him from the officer in charge of that part of the boat, who knew that he was passing that way in caring for his stock, and also knew the danger.

3. As plaintiff had passed over that way several times in company with, or with knowledge of, the mate, and found it all right, he was not guilty of contributory negligence, as matter of law, in assuming that it was safe, but that question was for the jury.

HARVEY MEYERS FOR APPELLANT.

1. The evidence shows conclusively that appellee knew where the hatchway was, and that it was liable to be open, and in going to feed his stock, he could have avoided going near it, and would not have been injured had he used ordinary care.

2. The burden was upon the appellee to show negligence on the part of appellant, in order to entitle him to recover, even if he were not guilty of contributory negligence. Hughes v. Railroad Co., 91 Ky., 531; Crane's Adm'r. v. Ohio Valley Tel.Co., 47 S. W., 760; Reed v. Cov. & Cin. Bridge Co., 16 Ky. Law Rep., 379; Dwyer v. Natl. Steamship Co., 4 Fed. Rep., Murray v. McLean, 57 Ill., 378; Shearman & Redfield on Negligence, sec. 523.

3. Instruction No. 1 given by the court made it the duty of the of ficers of the boat to direct appellee which route or way he should take. If appellee voluntarily went upon deck it should

Memphis & Cin. Packet Co. v. Buckner.

have been his duty to make inquiry, and not the duty of the officers to seek him out and inform him.

4. The court erred in refusing to permit the jury to visit and inspect the boat where the injury was received.

W. S. PRYOR, ATTORNEY FOR APPELLANT.

1. There are two views of this case presented by the testimony, but in either aspect the verdict should have been for the defendant, and the jury should have been so instructed.

2. The defendant, by his own request, and it was a part of his contract, was allowed to feed and take care of his own stock on the boat. He knew there were hatchways on boats for loading beneath the second deck, and yet with a dim light, without making inquiry as to the best route to take, he negligently fell into the hatchway and was injured. This was such contributory negligence as precludes his right to recover. He assumed the risk. Shearman & Redfield on Negligence, 294.

M. L. HARBISON AND R. P. ERNST FOR APPELLEE.

1. The court properly overruled the motion of appellee for peremptory instruction. The record presents questions of fact that were properly submitted to the jury under proper instructions. 2. Appellant knew that appellee was using this passage way to go to his horses and knowing it was dangerous, no other way was pointed out to him.

3. On the occasion when the accident occurred the passage way was darkened by reason of piles of freight on both sides. The hatchway was left open. There was no guard about it, and no person there to warn appellee of the danger. There was no evidence that he knew of this hatchway. Lake Shore & M. S. Ry. Co. v. Brown, 123 Ill., 162; Chicago & E. Ill. Ry. Co. v. O'Connor, 119 Ill., 586; L. R. & Ft. S. Ry. Co. v. Miles, 40 Ark., 298; Lawson, Admx., v. Chicago, St. P., &c., Ry. Co., 64 Wis., 447; Chicago, Milwaukee, &c., Ry. Co. v. Carpenter, 12 U. S. A., 392; Missouri Pac. Ry. Co. v. Ivey, 71 Texas, 409; Fla. Ry. & Nav. Co. v. Webster, 25 Fla.; Porter v. N. Y., L. E. & W. Ry. Co., 13 N. Y. Supp., 491; Carroll v. N. Y. & N. H. Ry. Co., 1 Duer., 571, 1st Syl.; Creed v. Pa. Ry. Co., 86 Pa. St., 133; B. & O. R. R. Co. v. State, 72 Md., 37; O'Donnell v. The Ry. Co., 59 Pa. St., 239; Chicago & Alton Ry. Co. v. Winters, 175 Ill., 293 and 303; N. Y. C. & St. L. Ry. Co. v. Blumenthal, 160 Ill., 40; Chicago City Ry. Co. v. Rood, 163 Ill., 477; Richmond & Danville R. R. Co. v. Powers, 149 U. S., 43; Grand Trunk Ry. v. Ives, 144 U. S., 408 and 417; Texas & Pac. Ry. Co. v. Gentry, 163 U. S., 353;