Chesapeake & N.R. Co. v. Venable

• Decision Date: 28 May 1901
• Parties: CHESAPEAKE & N. R. CO. v. VENABLE. [1]
• Court: Kentucky Court of Appeals

63 S.W. 35

111 Ky. 41

CHESAPEAKE & N. R. CO. v. VENABLE. ^[1]

Court of Appeals of Kentucky.

May 28, 1901

Appeal from circuit court, Allen county.

"To be officially reported."

Action by W. L. Venable against the Chesapeake & Nashville Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

E. B Drake and Browder & Browder, for appellant.

Lewis McQuown, B. W. Bradburn, and John M. Wilkins, for appellee.

DU RELLE, J.

Appellee brought suit against appellant railroad company, alleging that he was a brakeman in the employ of the company, which was the owner of and engaged in operating a line of railroad from Scottsville, Ky. to Gallatin, Tenn., and that, while he was so employed, by reason of the gross negligence of the company in suffering the ties of its roadbed at a place in Sumner county, Tenn., to become rotten and defective, the rails spread under the weight of the cars, a car was derailed, and appellee thrown violently to the ground and injured, for which he sought damages.

One Weber filed a petition and bond, seeking the removal of the suit to the United States circuit court for the district of Kentucky, upon the ground that at decretal sale under order of the United States circuit court for the Middle district of Tennessee, some six years prior to the injury, he became, and still was, the sole owner of the Chesapeake & Nashville Railroad; that the amount involved was more than $2,000; and that he (the petitioner) was a citizen of New York, and appellee was a citizen of Kentucky. The circuit court refused to remove the case, and, we think, properly, as Weber had nothing whatever to do with the controversy in this case. He was not a party, no relief was sought against him, and, so far as this record discloses, it was entirely immaterial to him whether appellee recovered judgment or not.

The company answered, denying the averments of negligence and pleading contributory negligence, which was denied by the reply. The trial having resulted in a verdict and judgment for appellee, the company urges numerous grounds for reversal.

A ground insisted on with some degree of earnestness is that the demurrer should have been sustained, because the pleading shows that the injury was received in Tennessee, and there is no allegation concerning the measure of damages which, under the Tennessee law, ought to be applied by the jury. In support of this proposition, Bruce's Adm'r v Railroad Co., 83 Ky. 174, is cited. It is admitted that case was upon a cause of action given by the Tennessee statute, and sought a recovery not allowed by the common law. The existence and nature of the Tennessee statute under which that suit was brought were specifically set up in the petition, and so the question here raised was not presented in that case. The court there said, in an opinion by Judge Lewis: "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." It was contended in that case that, as the cause of action was not a common-law right, the rule stated did not apply, but the court held that in that respect there was no distinction between a common-law right and a statutory right. No question was made or decided as to the necessity for pleading the law of the state under which the right of action arose. Whatever may be the rule as to statutory rights, it is well settled that it is unnecessary to plead or prove the law of a foreign state unless it differs from the lex fori. Where a party seeks to recover or defend under a foreign law, such law must be pleaded and proved like any other fact; but in the absence of averment and proof the rule is that foreign states, whose system of jurisprudence is derived from the same source as our own, are presumed to be governed by the same law. So, in Watts v Thomas, referred to in the Bruce Case, the...