Milam ex rel. Aberson v. Sears , 1977 Ky. App. LEXIS 774 ( 1977 )

HOWARD, Judge.

The sole question presented by this appeal is whether a plaintiff-appellee whose appeal has been affirmed can collect the penalty of 10% from each of two appellant-defendants.

The plaintiff-appellant, hereinafter called “Milam” received a joint and several judgment against Sears, Roebuck and Company, hereinafter called “Sears”, and Otis Elevator Company, hereinafter called “Otis”. The judgment was in the amount of $10,-551.75 and same was superseded by both Sears and Otis by the means of separate bonds as each filed separate appeals. The judgment was affirmed by the Supreme Court of Kentucky and after the mandates issued Otis paid the judgment in full including interest and the 10% penalty.

Milam sought to collect the 10% penalty on the Sears bond but the trial court found against Milam. The reason for this decision seemed to be based upon the proposition that since this is a penalty statute it should be narrowly construed so as to limit Milam’s recovery to only one penalty.

Unfortunately, there is no persuasive authority one way or another on this point. The pertinent statutes are as follows:

1. KRS 446.020 Singular includes plural — Masculine includes feminine.

(1) A word importing the singular number only may extend and be applied to several persons or things, as well as to one person or thing, and a word importing the plural number only may extend and be applied to one person or thing as well as to several persons or things.

(2) A word importing the masculine gender only may extend and be applied to females as well as males. (457)

2. KRS 21.130. Damages upon affirmance.

Upon the affirmance of an appeal, or the dismissal of an appeal after it has been docketed in the Court of Appeals, where the appeal is from a judgment for the payment of money, the collection of which, in whole or in part, has been superseded, as provided in the Rules of Civil Procedure, ten per cent damages on the amount superseded shall be awarded against the appellant. (C.C. 764: amend. & trans. Acts 1952, ch. 84, § 35.)

It would appear that the proper statutory construction would be that the penalty statute means appellants rather than just one appellant. Therefore, there could be only one recovery in a case of joint and several liability. Of course, a different result may be required where there is a judgment against multiple defendants that resulted from separate and not necessarily related claims. However, we do not decide this point here.

The judgment of the trial court is affirmed.

All concur.