Bruce's Adm'r v. Cincinnati R. R. Co.

• Citation: 7 Ky.L.Rptr. 59,7 Ky.L.Rptr. 469,83 Ky. 174
• Parties: Bruce's Adm'r v. Cincinnati R. R. Co.
• Decision Date: 18 June 1885
• Court: Court of Appeals of Kentucky

83 Ky. 174

7 Ky.L.Rptr. 59, 7 Ky.L.Rptr. 469

Bruce's Adm'r v. Cincinnati R. R. Co.

Court of Appeals of Kentucky.

June 18, 1885

APPEAL FROM PULASKI CIRCUIT COURT.

CURD AND WADDLE FOR APPELLANT.

1. Where the statute of another State allows an action for damages by the personal representative of one who has been killed by the negligence of another, a personal representative appointed in this State may maintain an action here under that statute, the defendant being served here this State having a statute similar in character. (Wharton's Conflict of Laws, sections 710, 712, 719; Story's Conflict of Laws, section 556; Leonard v Columbia Steam Navigation Co., 84 N.Y. 48; Dennick v. Railroad Co., 103 U.S. 17.)

2. The case of Taylor's Adm'r v. Pennsylvania Co., 78 Ky. 348, is unlike this; but, if not, it should be overruled.

MORROW AND NEWELL FOR APPELLEE.

1. There can be no recovery in this State under the statute of Tennessee. Such statutes were not intended to have any extra-territorial force. (Taylor's Adm'r v Pennsylvania Co., 78 Ky. 348; Richardson v. N. Y Cent. R. R. Co., 98 Mass. 85; Woodward's Adm'x v. M. S. & N.J. R. R. Co., 10 Ohio St. 121; McCarthy v. Chicago, Rock Island and Pacific R. R. Co., 18 Kan. 26.)

2. Even conceding that there may be a recovery in this State under the foreign statute, where our statute upon the subject is substantially the same, there can be no recovery in this case, because the Kentucky statute authorizes a recovery in such cases only where there is willful neglect, while the Tennessee statute authorizes a recovery for simple negligence.

3. Gross negligence is not synonymous with willful neglect. ( Board Int. Imp. v. Scearce, 2 Duv., 576; Jacobs' Adm'r v. L. & N. R. R. Co., 10 Bush, 263; City of Lexington v. Lewis' Adm'r, 10 Bush, 677; Hansford's Adm'x v. Payne, 11 Bush, 380.)

C. B. SIMRALL ON SAME SIDE.

OPINION

LEWIS JUDGE:

This is an action by appellant, George Bruce, administrator of the estate of Robert Bruce, deceased, to recover of appellee, the Cincinnati Railroad Company, damages for the destruction of the intestate's life.

It is stated in the petition that appellee is a corporation, created by law, of the State of Ohio, and was, at the time the intestate was killed, operating, as lessee, the Cincinnati Southern Railway, which extends through a part of Ohio, through Kentucky, and a part of Tennessee; that the intestate was employed by appellee as a brakeman; and while engaged in the performance of his duties as such, the train of cars upon which he was so engaged was, by the negligence of the servants and agents of appellee, superior in authority to him, permitted to collide with another train of appellee, in the State of Tennessee, by reason of which he was immediately killed.

In an amended petition it is stated that the intestate lost his life in the manner stated in the original petition, through the gross and willful carelessness and negligence of his co-employes, engaged with him, at the time, in operating trains, who were superior in authority to him.

A second amended petition was filed, in which it is stated that appellant was first duly appointed and qualified as administrator of his intestate, in the State of Tennessee, and, as such, instituted an action in a circuit court there, which was, before the commencement of this action, dismissed, because the defendant had no agent in that State upon whom service of summons could be executed; that the intestate was, at the time of his death, a resident of the State of Kentucky, and engaged as a brakeman on the section of the railroad extending from Somerset, in Kentucky, to a station in Tennessee; that the lease of appellee expired a short time after the intestate was killed, when appellee discharged all its officers and agents, in the State of Tennessee, upon whom service of process could be executed, and have not since, and do not intend to have, any officer or agent upon whom service of summons can be executed in that State.

It is further stated, that under the laws of the State of Tennessee, if a person is killed by the negligence of another, the right of action for the injury causing the death does not abate or become extinguished by the death, but such right of action passes to the administrator of the deceased; that such action is allowed to the administrator against a railroad corporation for the killing of its employe by the negligence of another employe, having a grade of service in the employ of the corporation superior to that of the one killed; that the amount of recovery in such case is the damage for the suffering and anguish of the decedent, and for the loss of his services to the next of kin, and if the negligence which caused his death is gross, the jury may give vindictive or exemplary damages.

It is further stated, that all of the next of kin, and heirs at law of the decedent, who was under twenty-one years of age at his death, reside in the State of Kentucky, and are the same persons who will be entitled to whatever amount might be recovered in the action for the death of the intestate under the laws of the State of Tennessee.

A general demurrer having been sustained to the petition and amendments, the first question presented on this appeal is, whether the life of appellant's intestate, having been destroyed in the State of Tennessee, an action can be maintained here for the recovery of damages therefor? and, if so, the further question arises, whether a personal representative, appointed under the laws of this State, can sue for and recover such damages?

There is no doctrine better settled than that common law actions, transitory in their nature, will lie in this State, if process be served here on the defendant, although the cause of action arose in another State; and this rule has, from the beginning, been applied as well to actions ex delicto as to those ex contractu. For, in the case of Watts v. Thomas, 2 Bibb, 458, it was held that an action for assault and battery, committed in the State of Indiana, then a territory, would undoubtedly lie in a court of this State.

The right of action in this case does not, however, exist at common law, being founded solely upon the statute of another State, and it is contended, for that reason, the rule does not apply.

We are unable to perceive any valid reason for the distinction, for the common law exists in the States where it prevails only in virtue of statute laws, and is subject to modification or repeal altogether. In fact, in one of the States of the Union it never has existed.

In the case of Dennick v. Railroad Co., 103 U.S. 18, similar to this, and where this question was directly involved, the Supreme Court of the United States held as follows: " Whenever, by either the common law or the statute law of a State, a right of action has become fixed, and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matter, and can obtain jurisdiction of the parties; " and, said the court, " we do not see how the fact that it was a statutory right can vary the principle. A party legally liable in New Jersey can not escape that liability by going to New York. If the liability to pay money was fixed by the law of the State where the transaction occurred, is it to be said it can be enforced nowhere else, because it depended upon statute law and not upon common law? It would be a dangerous doctrine to establish that, in all cases where the several States have substituted the statute for the common law, the liability can be enforced in no other State but that where the statute was enacted and the transaction occurred."

In McDonald v. Mallory, 77 New York, 547, the doctrine was laid down, that where the wrong is committed in a foreign State or country, no action can be maintained in that State without proof of the existence of a similar statute in the place where the wrong was committed. And the court, in the subsequent case of Leonard v. Columbia Steam Nav. Co., 84 N.Y. 48, commenting on that rule, said: " The rule there laid down is just and reasonable, and it is not essential that the statute should be precisely the same as that of the State where the action is given by law, or where it is brought, but merely requires that it should be of a similar import and character." Several cases have been cited by counsel for appellee to show that the right to bring such an action has been denied in other States.

In Richardson v. N. Y. C. R. R. Co., 98 Mass. 85, the plaintiff brought an action in Massachusetts for damages under the statute of New York, for the killing of the intestate in the latter State. There was, at the time, no statute of Massachusetts of a similar kind, and it was held the action could not be maintained. In Woodward v. Mich S. & N. I. R. Co., 10 Ohio...