Austin's Admr. v. Pittsburg, C., C. & St. L. Ry. Co.

• Decision Date: 14 March 1906
• Citation: 122 Ky. 304
• Parties: Austin's Admr. v. Pittsburg, C. C. & St. L. Ry. Co.
• Court: Kentucky Court of Appeals

Page 304

122 Ky. 304

Austin's Admr. v. Pittsburg, C. C. & St. L. Ry. Co.

Court of Appeals of Kentucky.

March 14, 1906.

Appeal from Jefferson Circuit Court, Common Pleas Branch, First Division.

EMMET FIELD, Judge.

From a judgment overruling a demurrer to the answer plaintiff appeals. Reversed.

MATT O'DOHERTY and MORTON K. YONTS for appellant.

GIBSON, MARSHALL & GIBSON for appellee.

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OPINION OF THE COURT BY JUDGE O'REAR—Reversing.

Henry C. Austin, a citizen of Indiana, was injured by being run over by an engine on appellee's railroad at a street crossing in Jeffersonville, Ind. He sued the appellee in this State to recover damages for the injury, which he charged was occasioned by the gross negligence of appellee's servants in charge of and operating the engine, by which the injury was inflicted upon him. Some while after his suit was filed he died, still a resident of Indiana. He owned no property in this State. An administrator was appointed over his estate by the Jefferson County Court of this State. The suit was revived in the name of the administrator. Appellee defended, denying the negligence charged, pleading contributory negligence, and, in addition, set out in the third paragraph of its answer that decedent at the time of his death was a citizen and resident of Jeffersonville, Ind., that he owned no estate of any kind in Kentucky, and had no debt owing to him in Kentucky. By the fourth paragraph of the answer it was pleaded that the injury sued for was done in Indiana, that the cause of the action arose under the laws of that State, and that it was provided by a statute of Indiana (Burns' Ann. St. 1901, section 283) that: "A cause of action, arising out of an injury to the person, dies with the person of either party, except in cases in which an action is given for an injury causing the death of any person, and actions for seduction, false imprisonment, and malicious prosecution." It was also pleaded in this paragraph that the injury inflicted upon decedent, and which is sued for in this action, did not cause his death. The circuit court overruled a demurrer to the third and fourth paragraphs of the answer, and, appellant being unable to controvert them, the petition was dismissed.

The court is of opinion that the demurrer should have been sustained to each of the paragraphs named. The statutes of this State (sections 3894, 4849, Ky. Stats. 1903) provide that letters of administration may be granted in this State by the county court of the county where decedent died, or where his estate, or part thereof, shall be, "or where there may be any debt, or demand owing him." Construing these sections, it has been held that where a non-resident has been killed in this State by the tort of another, administration will be granted upon his estate in this State, even for the sole purpose of suing to recover damages for the tort, because the statute which gives the right of action to the estate of such decedent for such death, ex necessitate rei, confers jurisdiction by implication, to appoint an administrator to prosecute the suit. Brown's Adm'r v. L. & N. R. R. Co., 97 Ky., 228, 17 Ky. L. R., 145, 30 S. W., 639. It has also been held that where a resident of this State is killed by the tort of another out of this State, administration may be granted upon his estate in this State. But it has been held also that where a nonresident of this State, is killed by the tort of another out of the State and who has not estate or property in this State, there cannot be administration granted upon his estate in this State. Hall's Adm'r v. L. & N. R. R. Co., 102 Ky. 484, 19 Ky. Law Rep., 1529, 43 S. W. 698, 80 Am. St. Rep., 358; Turner's Adm'r v. L. & N. R. R. Co., 62 S. W. 1025, 23 Ky. Law Rep., 340. Section 3878, Ky. Stats. 1903, allows a non-resident administrator to sue in this State, by giving bond here, to recover any debt due to his intestate. Construing this section, it was...