Compton's Adm'r v. Borderland Coal Co.

• Decision Date: 08 March 1918
• Citation: 201 S.W. 20,179 Ky. 695
• Parties: COMPTON'S ADM'R v. BORDERLAND COAL CO.
• Court: Kentucky Court of Appeals

201 S.W. 20

179 Ky. 695

COMPTON'S ADM'R v. BORDERLAND COAL CO.

Court of Appeals of Kentucky.

March 8, 1918

Appeal from Circuit Court, Pike County.

Action by Roscoe Vanover, administrator of the estate of John Compton, against the Borderland Coal Company. From a judgment dismissing the petition, plaintiff appeals. Affirmed.

Roscoe Vanover, of Pikeville, and J. C. Cantrell, of Stone, for appellant.

J. J Moore, of Pikeville, James P. Woods, of Roanoke, Va., and Samuel D. Stokes, of Williamson, W. Va., for appellee.

SETTLE C.J.

December 21, 1915, John Compton, an employé of the appellee Borderland Coal Company, while engaged in the work of mining coal for it in Pike county, was killed by a block of slate which fell upon him from the roof of the mine, and this action was brought by the appellant, Roscoe Vanover, as administrator of his estate, seeking to recover of appellee damages for his death; it being alleged in the petition that it was caused by the negligence of appellee and its mine foreman in failing to provide him with a reasonably safe place for the performance of the work required of him. The amount of damages claimed was $3,000. The appellee filed an answer which, with its amendments, consisted of four paragraphs; the first containing a traverse; the second, a plea of contributory negligence on the part of the decedent the third, assumption of risk by the latter. In the fourth paragraph it was alleged, in substance, that at the time of his death John Compton was a bona fide resident of Scioto county, Ohio, with his family, consisting of a wife and two children; that he came to Kentucky shortly before his death to accept temporary employment in appellee's mine intending and expecting to return in a few weeks or months to his home and family in Scioto county, Ohio; that he did not own any property or owe any debts in Kentucky; that his widow, Belle Compton, was on January 20, 1916, appointed by the probate court of Scioto county, Ohio, administratrix of his estate, and then gave the necessary bond and duly qualified as such; and that between that date and January 26, 1916, the day of the institution of this action in the Pike circuit court by appellant, she, in West Virginia, the state in which appellee was incorporated and where it has its chief office, as administratrix of the decedent's estate, made with appellee a compromise and settlement whereby the liability of appellee, if any there was, for the death of the decedent, was agreed by the parties to be settled and discharged by its payment to her of $2,000 damages, which amount was paid by appellee and accepted by her January 27, 1916, in full satisfaction of the damages sustained by the decedent's estate for and on account of his death. Which payment and settlement, it was alleged, was made and consummated without information or knowledge on the part of appellee or the administratrix of the decedent's estate that the appellant had instituted this action, or been appointed administrator of the decedent's estate in Kentucky.

Appellant filed a general demurrer to the answer as amended, and each paragraph thereof, and, without waiving his right to insist upon same, by reply controverted the affirmative matter of the answer, as amended, except the fourth paragraph thereof. The circuit court, being of opinion that the matters set up in the fourth paragraph of the answer constituted a good defense, overruled the demurrer, and, appellant failing to plead further, his petition was dismissed, and appellee awarded its costs. Appellant complains of the judgment entered in conformity to these rulings; hence this appeal.

The following facts are admitted by the pleadings: (1) That at the time of his death, December 21, 1915, in Pike county, Ky. the decedent, Compton, was a bona fide resident of Scioto county, Ohio; (2) that appellant, by an order of the Pike county court made January 17, 1916, was appointed and duly qualified as administrator of his estate; (3) that appellant instituted this action against appellee January 26, 1916; (4) that Belle Compton, the widow of the decedent, was, by an order of the probate court of Scioto county, Ohio, duly appointed administratrix of his estate January 20, 1916; (5) that the decedent at the time of his death did not own any property in the state of Kentucky nor owe any debts therein; (6) that the appellee is a corporation created under the laws of West Virginia and has its chief office in that state; (7) that during the time that intervened between January 20 and January 26, 1916, appellee contracted and agreed with Belle Compton, as administratrix of the decedent's estate, to pay her $2,000 in full settlement of all damages claimed by her for his death, and that this sum was paid her by appellee January 27, 1916; (8) that at the time appellee thus contracted and agreed to pay the $2,000 to Belle Compton as administratrix in settlement for the death of her husband, this action had not been instituted by appellant, and when the payment of that sum was later made to her January 27, 1916, neither appellee nor Belle Compton had any knowledge of the institution of this action by appellant, nor of his appointment by the Pike county court as administrator of the decedent's estate; (9) that after receiving the $2,000 paid her by appellee Belle Compton, as administratrix of her husband's estate, distributed and paid the same to the persons entitled thereto.

We have not been referred to nor have we found a case decided in this jurisdiction the facts of which were similar to those presented in the instant case. But, as the death of the decedent occurred in this state, and the cause of action arose therein, the remedy afforded by its law, if an action was necessary, must control as to the recovery of damages for his death, and by whom the action therefor should have been brought. Section 241, Constitution, provides:

"Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in all cases be prosecuted by the personal representative of the deceased person. The General Assembly may provide how the recovery shall go and to whom belong; and until such provision is made the same shall form part of the personal estate of the deceased person."

By section 6, Kentucky Statutes, it is provided:

"Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then in every such case, damages may be recovered for such death from the person or persons, company or companies, corporation or corporations, their agents or servants, causing the same, and when the act is willful or the negligence is gross, punitive damages may be recovered, and the action to recover such damages shall be prosecuted by the personal representative of the deceased. The amount recovered less funeral expenses and the cost of administration, and such costs about the recovery, including attorney fees, as are not included in the recovery from the defendant, shall be for the benefit of and go to the kindred of the deceased in the following order, viz.: * * * 2. If the deceased leaves either a widow and children or a husband and children, then one-half to such widow or husband and the other one-half to the children of the deceased."

Section 3880, Kentucky Statutes, provides:

"If there be an executor or administrator of such decedent qualified by a court of this commonwealth, he alone shall have power to sue; but any debtor who shall pay his debt, or part of it, according to the provisions of the foregoing sections, without notice thereof, shall be discharged to the extent of such payment."

It will be seen from the language of this section that authority to bring such action is conferred upon the resident administrator alone. L. & N. R. R. Co. v. Brantley, 96 Ky. 297, 28 S.W. 477, 16 Ky. Law Rep. 691, 49 Am.St.Rep. 291; Brown v. L. & N. R. Co., 97 Ky. 228, 30 S.W. 639, 17 Ky. Law Rep. 145.

The question we are called upon to decide, however, is not whether appellant had authority to bring the action, but whether the settlement of damages made with the widow and Ohio administratrix of the decedent by appellee before its institution, but paid the day after its institution admittedly...