Conley v. Sousa

• Decision Date: 01 July 1977
• Citation: 554 S.W.2d 87
• Parties: Trina Jo CONLEY, an infant, by and through her father and next friend, Joe G. Conley, Jr., Appellant, v. Mary Lou SOUSA (Formerly Mary Lou Gorman, d/b/a Cherokee Stable), Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 87

554 S.W.2d 87

Trina Jo CONLEY, an infant, by and through her father and next friend, Joe G. Conley, Jr., Appellant, v. Mary Lou SOUSA (Formerly Mary Lou Gorman, d/b/a Cherokee Stable), Appellee.

Supreme Court of Kentucky.

July 1, 1977.

Robert G. Stallings, Louisville, for appellant.

Richardson, Barrickman & Dickinson, Glasgow, for appellee.

LUKOWSKY, Justice.

Conley is a minor who was injured in Kentucky when she was thrown from a horse rented from Sousa in Kentucky. Sousa was a resident of Kentucky at the time of the injury, but moved to Ohio prior to the filing of the complaint. The sole issue on this appeal is whether Kentucky's long-arm statute is long enough to reach Sousa. The trial judge held that it was not and dismissed the suit. We reverse.

KRS 454.210, Kentucky's long-arm statute, provides in pertinent part "(1) As used in this section, 'person' includes an individual his executor, administrator, or other personal representative, or a corporation, partnership, association, or any other legal or commercial entity, who is a nonresident of this commonwealth.

(2)(a) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a claim arising from the person's:

1. Transacting any business in this commonwealth;

2. Contracting to supply services or goods in this commonwealth;

3. Causing tortious injury by an act or omission in this commonwealth; . . ." (Emphasis supplied)

Read literally it would appear that the statute applies only to those who are nonresidents at the time they act in the manner described in KRS 454.210(2) (a). It is true that KRS 454.210(1) defines "person" as including a nonresident individual, but it does not specifically exclude resident individuals who become nonresidents. It has been held that a statutory definition of a term as "including" certain things or persons does not necessarily put a meaning thereon limited to the inclusion. 73 Am.Jur.2d, Statutes, sec. 212, n.65. This rule is applicable to the situation we have here. If we were not to apply it, we would have to attribute to the legislature the anomalous intent to give more protection to a resident who deliberately flees the jurisdiction of Kentucky's courts than to a nonresident who acts in perfect good faith.

The Ohio long-arm statute contains language identical to Kentucky's. It served as the model for our legislature. It has been interpreted by the Supreme Court of Ohio to extend in personam jurisdiction to those who were residents at the time the claim arose and who thereafter became nonresidents. Jackson v. Keske, 20 Ohio St.2d 89, 253 N.E.2d 778 (1969). That case noted that the Uniform Interstate and International Procedure Act, which served as the model for the Ohio Act, defines "person" to include individuals whether residents of the forum state or otherwise. The Ohio court rejected the argument that the Ohio legislature adopted an alternative definition of "person" in order to restrict the in personam jurisdiction of its courts. Rather, it found that the explanation for this change in language was that the legislators did not want to tamper with the Ohio venue requirements for resident defendants. The court noted that if the language of the Uniform Act had been adopted, it could conceivably have led to county to county "longarmism."

While there is nothing wrong with the reasoning of the Ohio court, we need not speculate about the intent of our legislature. The preamble to Kentucky's long-arm statute discloses legislative intent. Nichols v. Wells, 2 Ky. 255 (1803). It...