Jewel Tea Co. v. Walker's Adm'R
| Decision Date | 28 April 1942 |
| Citation | 290 Ky. 328 |
| Parties | Jewel Tea Co. et al. v. Walker's Adm'r. |
| Court | United States State Supreme Court — District of Kentucky |
1. Executors and Administrators. — Where nonresident of state dies as result of injuries received in state and leaves no property or indebtedness due him therein other than right of action for his death, county court of county wherein injury was received has jurisdiction to grant administration on his estate (Ky. Stats., secs. 3894, 4849).
2. Executors and Administrators. — In action for death of nonresident of state as result of injuries sustained in state, defendant's failure to deny that plaintiff who lived in another county of state than that in which accident occurred was legally appointed as administrator of estate by county court of county of accident wherein petition alleged that decedent resided, did not constitute "waiver" of question whether appointment was void for want of jurisdiction nor give any life or validity to such appointment.
3. Trial. — A motion for directed verdict or nonsuit searches record, and it is court's duty to sustain motion if it is made manifest in record that moving party is entitled thereto.
4. Trial. — To authorize instruction as in case of nonsuit, it should appear that admitting truth of plaintiff's testimony and every inference fairly deducible therefrom, he has still failed to support his claim.
5. Executors and Administrators. — In action for death of nonresident of state as result of injury sustained in Kentucky, defendant's motion for directed verdict at conclusion of evidence seasonably raised question as to validity of appointment of plaintiff who resided in another county than that in which accident occurred, as administrator of decedent's estate by county court of county of accident (Ky. Stats., secs. 3894, 4849).
6. Death. — Where appointment of resident of another county than that in which accident resulting in death of nonresident of state occurred, as administrator of decedent's estate by county court of such county was void, such appointee had no right to maintain action in circuit court of county of accident to recover damages for decedent's death (Ky. Stats., secs. 3894, 4849).
Appeal from Muhlenberg Circuit Court.
T.O. Jones for appellants.
S.C. Eaves and J.C. Cannady for appellee.
Before Clarence Bartlett, Judge.
Reversing.
The appellee, W.A. Walker, suing as administrator of the estate of John Walker, deceased, brought this action in the Muhlenberg circuit court to recover of appellants for the death of decedent which resulted from being struck by a motor truck owned by appellant Jewel Tea Company and being operated by appellant Bill Wood. The accident occurred in Muhlenberg county on the 13th day of March, 1938. Soon after the death of decedent, appellee, a resident of Webster county, Kentucky, was appointed administrator of the decedent's estate, by the county court of Webster county. A trial of the case resulted in a jury verdict and judgment thereon in the sum of $2,000 in favor of the administrator, and to reverse that judgment the appellants have prosecuted this appeal, insisting upon a reversal upon various grounds, one of which is that the appointment of appellee by the Webster county court as administrator of the estate of the deceased was void and hence appellee was without right to maintain this action.
It is alleged in the petition that John Walker, the deceased, died intestate a resident of Webster county, Kentucky, and that immediately thereafter appellee was by proper orders of the Webster county court appointed administrator of the decedent's estate and thereupon qualified and is now the duly acting qualified administrator of the said John Walker. The petition further alleges that the accident was caused by the negligent operation of the motor truck owned by appellant Jewel Tea Company and being operated by appellant Wood. Appellants filed a general demurrer to the petition and without waiving same filed their answer denying the allegations of negligence on the part of Wood in the operation of the truck but did not deny the allegations with respect to the appointment of appellee as administrator of the decedent's estate, or that he was the duly acting qualified administrator of the decedent's estate.
It developed however, by the evidence of appellee administrator, that his decedent John Walker was a resident of Springfield, Illinois, at the time of his death and was not a resident of Webster county, Kentucky, as alleged in the petition. It is admitted that appellee, administrator, resided in Providence, in Webster county. The court then ruled that evidence on the question of the residence of decedent was irrelevant and incompetent, since there is no denial in the pleadings that appellee was the duly appointed and qualified administrator of the estate of the decedent. Counsel for appellants then stated that he did not know until that time that the decedent was not a resident of Webster county, Kentucky, at the time of his death and did not know that appellee was not the legal administrator of the estate of the decedent until after the trial began on that day when appellee testified, and further stated that it is now shown that the decedent was a resident of the state of Illinois at the time of his death. Counsel then moved the court to dismiss the case because the Webster county court that appointed appellee as administrator had no authority to make such appointment because decedent was not a resident of Webster county at the time of his death, but was a resident of Springfield, Illinois, and the injury resulting in his death occurred in Muhlenberg county, and therefore the attempted appointment of an administrator by the Webster county court was void for want of jurisdiction. The court sustained objections to the motion on the ground that there was no denial of the allegations in the petition that decedent was a resident of Webster county at the time of his death, or that appellee was the duly qualified and acting administrator of decedent's estate and, therefore, no issue to which evidence could be directed.
Counsel for appellants then moved the court to discharge the jury and continue the case on the grounds of surprise, in that they did not know until the trial started that appellee was not legally appointed administrator, and not authorized to maintain the action, and asked an opportunity to present the facts, if the court needed further facts, in support of his motion. The court again sustained objections to this motion on the ground that there was no issue made in the pleadings on the question, and further, that there was no showing that counsel could not have by the exercise of due diligence known of the facts.
The first question to be determined is whether or not the order of the Webster...
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