Wintuska's Adm'r v. Louisville & N.R. Co.

• Citation: 20 S.W. 819
• Parties: Wintuska's Adm'r v. Louisville & N. R. Co.
• Decision Date: 17 December 1892
• Court: Court of Appeals of Kentucky

20 S.W. 819

Wintuska's Adm'r v. Louisville & N. R. Co.

Court of Appeals of Kentucky.

December 17, 1892

Appeal from circuit court, Logan county.

"Not to be officially reported."

Action by Charles Wintuska's administrator against the Louisville & Nashville Railroad Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Holt C.J.

This action was brought by the administrator of Charles Wintuska to recover damages for his death when acting as a brakeman upon appellee's train, it being alleged that it resulted through the gross and willful negligence of the company in failing to provide a proper roadway, to wit, in allowing a ledge of rocks to remain so near the edge of its road that the deceased was knocked off the train by it, and killed. He lived in this state, but the accident occurred in Tennessee. He died leaving no widow or child, and his administrator was appointed in Kentucky. The law of Tennessee authorizes an action by the personal representative where the death results from the fault, omission, or wrongful act of another, the recovery to be "for the benefit of his widow or next of kin, free from the claims of creditors."

The right to maintain the action is denied because the deceased died unmarried, it being contended that under a proper construction of the Tennessee statute the recovery must be for the benefit of the widow or child; that our statute so limits the recovery, and if there be no widow or child, therefore there can be no recovery. The states are, inter se, foreign countries, and the right to sue in one state, the cause of action having arisen in another, rests upon comity. The supreme court of the United States in Dennick v. Railroad Co., 103 U.S. 11, held that where, either by the common law or a statute, a right of action has accrued and a liability been incurred, it may be enforced in any court having jurisdiction of the subject-matter and the parties. It holds this to be the rule, although the liability has arisen by virtue of a statute, and no similar one exists where it is sought to be enforced. It is unnecessary to say, however, how far this court would extend the rule. It is sufficient to say that in a case like this one, and where the liability arose in Tennessee, this court held in the case of Bruce's Adm'r v. Railroad Co., 83 Ky. 174, that the action could be brought in this state, and by an administrator appointed in its court. That case is decisive of...