Chesapeake & O. Ry. Co. v. Ryan's Adm'r

• Decision Date: 28 February 1919
• Citation: 183 Ky. 428,209 S.W. 538
• Parties: CHESAPEAKE & O. RY. CO. ET AL. v. RYAN'S ADM'R.
• Court: Kentucky Court of Appeals

209 S.W. 538

183 Ky. 428

CHESAPEAKE & O. RY. CO. ET AL. v. RYAN'S ADM'R.

Court of Appeals of Kentucky.

February 28, 1919

Appeal from Circuit Court, Carter County.

Suit by Jerome Duvall, as administrator of Hobert Ryan, deceased against the Chesapeake & Ohio Railway Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Shelby Northcutt & Shelby, of Lexington, James Clay, of Morehead and H. L. Woods, of Olive Hill, for appellants.

Theobald & Theobald, of Grayson, and J. Powell Royal, of Tazewell, Va., for appellee.

CLAY C.

Charging that his intestate was forced by Charles Maddix, a brakeman in the railway company's employ, to leave a freight train while it was traveling at an excessive rate of speed, and received injuries from which he died, Jerome Duvall, as administrator of Hobert Ryan, deceased, brought this suit against the Chesapeake & Ohio Railway Company and Charles Maddix to recover damages for his death. From a verdict and judgment in favor of plaintiff for $3,000, the railway company and Maddix appeal.

The intestate was injured in Carter county and was then carried by the railway company to Cabell county, W.Va. At the time of his death, the intestate was neither a citizen nor a resident of the state of Kentucky. He owned no property of any kind in this state, and there was no debt or demand due him in this state. At the time of his death, he was a resident of Tazewell county, Va. The railway company was a citizen and resident of the state of Virginia, with its principal office and place of business in the city of Richmond. After setting forth these facts, the first paragraphs of the separate answers filed by the defendants charged that the Carter county court had no power to appoint plaintiff, administrator of the intestate, that said order was void, and that plaintiff was without capacity to institute or maintain the action.

The alleged error of the trial court in sustaining a demurrer to this plea is the first ground urged for reversal.

In the case of Brown's Adm'r v. Louisville & N. R. Co., 97 Ky. 228, 30 S.W. 639, 17 Ky. Law Rep. 145, we held that the court of the county wherein a nonresident is killed by the negligence of a railroad company may appoint an administrator to sue the company, though the deceased leaves no property in the state other than such right of action. While it is true that the court said, "and we deem the court of the county, where the injury was done and where the man died, the proper court to entertain such jurisdiction," we do not regard the death of the intestate in this state as necessary to confer jurisdiction. The statute provides that damages may be recovered in every case of death resulting from injuries inflicted by negligence or the wrongful act of another, and that the action shall be prosecuted by the personal representative of the deceased. Section 6, Ky. St. While the statute has no extraterritorial effect, it necessarily includes deaths resulting from injuries inflicted by negligence or wrongful act in this state, and it is therefore not material where the deaths occur. In other words, the cause of action arises in, and is controlled by the law of, the state where the injury occurred. Since a foreign administrator cannot sue, it follows that a contrary view would deprive the intestate of the right to prosecute in the courts of this state, the right of action given by the statute. Hence we conclude that the county court of Carter county, the place where the intestate received the injury resulting in his death, had jurisdiction to appoint plaintiff as the administrator of the intestate, notwithstanding the fact that the intestate was a nonresident of this state and his death occurred in another state, and he left no property nor indebtedness due him in this state other than his right of action.

The next insistence is that the verdict is flagrantly against the evidence. It appears that Ryan was a boy 19 years of age. He resided at Pardee, Va., and left there in company with three companions. They first went to Anwalt, W. Va., where they worked in mines for a while. They then went to Portsmouth Ohio, and, after working there a short time, started for McRoberts, Ky. They were "beating their way on freight trains." On the morning of the accident they were put off freight train No. 67 at Mt. Savage, the first station east of Hitchins. They then made their way to a point near Hitchins. West-bound freight train No. 99 stopped at a point east of Hitchins, and the boys came toward the train apparently with the intention of boarding it. Maddix, the brakeman, motioned for them to stay off; but two got on at the undergrade crossing, and the other two shortly thereafter. When Maddix approached the first two boys, they did not want to get off. Finally, however, they got off at a point west of the depot at Hitchins. They then tried to get back on the train, but Maddix watched them for some time. He then went to the third boy and told him to get off. Ryan was near the caboose, and Maddix walked back to where he was. The speed of the train was then about 20 miles an hour. Maddix says that he found Ryan...