Affirming in part and reversing in part.
Mark A. Smith, and Mrs. Dorothy A. Smith have appealed from a $15,000 judgment recovered against them by the appellee.
About 5:15 p. m. Tuesday June 13, 1933, Mrs. Louvine Overstreet was struck and killed by an automobile driven by Miss Dorothy Smith, who is frequently referred to in this record as Billie Smith, and, to avoid *Page 782 the confusion resulting from the similarity of her name to that of her mother, we shall hereafter so refer to her.
An administrator for Mrs. Overstreet was appointed, and this suit was begun against Mark A. Smith, his wife, Dorothy A. Smith, and their daughter Billie Smith, on June 24, 1933, and at a trial concluded on December 1, 1933, a judgment was entered upon the verdict of a jury for $15,000 against all three of the defendants. Later it was discovered no guardian ad litem had been appointed for the 16 year old defendant, Billie Smith, and the judgment was set aside as to her, and her father and mother are our appellants.
The automobile by which Mrs. Overstreet was killed was owned by Mrs. Dorothy A. Smith, and was driven at the time with her consent by her daughter Billie Smith. Mark A. Smith had no control over this machine further than this, that Mrs. Smith respectfully deferred to his wishes regarding its operation. Mrs. Smith was liable for her daughter's negligent operation of it under the "Family Purpose" doctrine, but her husband was not. We feel that the question of his responsibility is settled in Kentucky by the cases of Holland v. Goode,
"In such actions [torts], where several persons are sued jointly, a joint verdict may be rendered, and new trial granted as to some of them, and the full amount of the judgment left standing against one, the liability of such defendants being both joint and several."
We affirmed a judgment wherein a joint judgment had been rendered against three parties, and later a new trial was granted to two of them. See Loving v. Com.,
The appellants cite in support of their position the case of Cunningham v. Dyer, 18 Ky. (2 T. B. Mon.) 50. If this opinion ever had any persuasive force, that was certainly destroyed by the later opinion in Buckles v. Lambert, 61 Ky. (4 Metc. 330), and by the numerous opinions wherein we have since followed the Buckles Case; but this Cunningham. Case is not and never was authority in this commonwealth.
It was rendered by the so-called Supreme Court of Kentucky, sometimes called the "New Court," which was an unconstitutional tribunal the General Assembly of this commonwealth attempted to set up by an act approved December 24, 1824. It held what it called a spring term in 1825 and decided 57 cases, and in the fall it decided 21 cases; then it quit. Lawyers fully realized it had no constitutional existence, few if any *Page 784 records were sent to it, and it soon exhausted those records of which it had taken possession at its inception.
The rightful court (the Court of Appeals), though much hampered (the other tribunal took possession of the records on hand), continued to function. It decided one case at its spring term of 1825, Ward v. Trotter, 19 Ky. (3 T. B. Mon.) 1, and 45 cases at the fall term and thereafter functioned regularly and the General Assembly by an act approved December 30, 1826 (see Acts 1826, c. 8, p. 13), repealed the act by which it had attempted to set up this so-called Supreme Court. It never had any constitutional existence, some cases decided by it were perhaps settled, but the most of the cases reported as decided by it were later taken up and decided by this court as if the so-called "Supreme Court" had never existed; for example, see Chiles v. Calk, 19 Ky. (3 T. B. Mon.) 341; Davis v. Young, 19 Ky. (3 T. B. Mon.) 381; Elston v. Bowman, 19 Ky. (3 T. B. Mon) 37; January v. Henry, 19 Ky. (3 T. B. Mon.) 8; Leather's Representatives v. McGlasson, 19 Ky. (3 T. B. Mon.) 223; McClain v. French, 19 Ky. (3 T. B. Mon.) 385; Stewart v. Durrett, 19 Ky. (3 T. B. Mon.) 113; Bailey et al. v. Duncan's Representatives, 20 Ky. (4 T. 485; Breckinridge v. Ralls, 20 Ky. (4 T. B. Mon.) 533; Brown v. Vance's Ex'rs, 20 Ky. (4 T. B. Mon.) 418; Clarke's Adm'r v. Chiles, 20 Ky. (4 T. B. Mon.) 390; Cravins v. Gant, 20 Ky. (4 T. B. Mon.) 126; Stevens v. Stevens, 20 Ky. (4 T. B. Mon.) 524; Dickinson v. Chism's Adm'r, 20 Ky. (4 T. B. Mon.) 1; Handley v. Rankins, 20 Ky. (4 T. B. Mon.) 554; Hord's Adm'rs v. Lee, etc., 20 Ky. (4 T. B. Mon.) 36; Humphreys v. Lewis, 20 Ky. (4 T. B. Mon.) 337; Kibby v. Chitwood's Adm'r, 20 Ky. (4 T. B. Mon.) 91, 16 Am. Dec. 143; Kirk v. Williams, 20 Ky. (4 T. B. Mon.) 413; Locke v. Coleman, 20 Ky. (4 T. B. Mon.) 315; Martin's Adm'r v. United States, 20 Ky. (4 T. B. Mon.) 487; McGrath v. Herndon, 20 Ky. (4 T. B. Mon.) 480; McMurtry v. Frank, 20 Ky. (4 T. B. Mon.) 39; Neal v. Keel's Ex'rs, 20 Ky. (4 T. B. Mon.) 162; Pollard v. Pollard, 20 Ky. (4 T. B. Mon.) 359; Roach v. Wade, 20 Ky. (4 T. B. Mon.) 523; Smalley v. Anderson, 20 Ky. (4 T. B. Mon.) 367; Thornberry v. Churchill, 20 Ky. (4 T. B. Mon.) 29, 16 Am. Dec. 125; Waggener v. Bells, 20 Ky. (4 T. B. Mon.) 7; Ward v. Deering, 20 Ky. (4 T. B. Mon.) 44; Bank of Limestone v. Penick, 21 Ky. (5 *Page 785 T. B. Mon.) 25; Hall v. Amos, 21 Ky. (5 T. B. Mon.) 89, 17 Am. Dec. 42; Slaughter v. Froman and wife, 21 Ky. (5 T. B. Mon.) 19, 17 Am. Dec. 33; Snelling v. Boyd, 21 Ky. (5 T. B. Mon.) 172; Wilson's Adm'r v. Bowen, 21 Ky. (5 T. B. Mon.) 33; Erwin v. Devine, 24 Ky. (1 J. J. Marsh.) 204; Stewart v. Stewart, 30 Ky. (7 J. J. Marsh.) 183, 23 Am. Dec. 396.
In none of these opinions is the slightest mention made of the previous adjudications in the so-called "Supreme Court," and in all of our decisions, only five of the decisions of that court have been cited and then perhaps inadvertently. Cases reported in 18 Ky. (2 T. B. Mon.) are not and have never been authority in Kentucky. See Dembitz, Ky. Jurisprudence, p. 19.
*Page 786 96 Am. St. Rep. 475. A demurrer was sustained to this paragraph, and appellee complains of this and of the new trial granted Miss Billie, but, in the absence of a cross-appeal, these questions are not before us.
Judgment reversed as to Mark A. Smith and affirmed as to Dorothy A. Smith.
The whole court sitting.