Louisville & N.R. Co. v. Pointer's Adm'r

• Decision Date: 16 October 1902
• Citation: 113 Ky. 952,69 S.W. 1108
• Parties: LOUISVILLE & N. R. CO. v. POINTER'S ADM'R.
• Court: Kentucky Court of Appeals

69 S.W. 1108

113 Ky. 952

LOUISVILLE & N. R. CO. v. POINTER'S ADM'R.

Court of Appeals of Kentucky.

October 16, 1902

Appeal from circuit court, Whitley county.

"To be officially reported."

Action by Charles Pointer's administrator against the Louisville & Nashville Railroad Company. From a judgment for plaintiff defendant appeals. Affirmed.

J. W Alcorn, for appellant.

C. C Williams and W. G. Welch, for appellee.

O'REAR J.

Charles Pointer, a fireman on one of appellant's locomotives, was killed 17th March, 1899, in Lee county, Va., by the wrecking of his train. A large rock, or quantity of rock and dirt, slipped from the side of a cut through which the railroad passed, and, not being discovered in time, the train ran into it. The train was derailed, and appellee's intestate was scalded and otherwise injured by the overturning of the locomotive, from which injuries he died. On March 8, 1900, this suit was filed in the Whitley circuit court by his administrator to recover damages for his death; it being alleged that the accident was caused by the negligence of appellant, its agents and servants, in failing to remove the stone and débris from the side of the cut in time to have prevented the slip. It was charged that appellant knew, or by the exercise of ordinary care could have known, of the existence of the danger in time to have averted the accident. The answer denied the negligence charged, and alleged that, instead of being a mass of stone and dirt, there was but one stone that fell, and that appellant had no knowledge or notice of its dangerous condition in time to have prevented its falling, and could not have known it by the exercise of ordinary care. Later, but not within a year of the death of appellee's intestate, appellee tendered an amended answer in which he admitted that there was but one stone that fell, instead of a large mass of stone and dirt. He also charged for the first time that there was a statute of Virginia allowing a recovery for the death of one produced by the negligence of another. The statute was set out in hæc verba, and is as follows:

Code, § 2902. "Whenever the death of a person may be caused by the wrongful act, neglect or default of any person or corporation *** and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action *** then, and in every such case the person who or corporation *** which would have been liable if death had not ensued, shall be liable to an action for damages."

Sec. 2903. "Every such action shall be brought by and in the name of the personal representative of such deceased person, and within twelve months after his or her death. The jury in such action may award such damages as to it may seem fair and just, not exceeding ten thousand dollars, and may direct in what proportion they shall be distributed to the wife, husband, parent and child of the deceased."

Sec 2904. "The amount recovered in such action shall after the payment of costs and reasonable attorneys fees be paid to the wife, husband, parent and child of the deceased, in such proportion as the jury may have directed, or if they have not directed, according to the statute of distribution; and shall be free from all debts and liabilities of the deceased; but if there be no wife, husband, parent or child, the amount so recovered shall be assets in the hands of the personal representative to be disposed of according to law."

Sec. 2557. "When any person shall be intestate as to his personal estate or any part thereof, the surplus ***, after payment of funeral expenses, charges of administration and debts shall pass and be distributed to and among the same persons and in the same proportion, to whom and in which real estate is directed to descend."

Sec. 2548. "When any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass in parcenary of such of his kindred male and female, as are not alien enemies, in the following course: First, to his children and their descendants; second, if there be no child nor the descendant of any child, then to his father."

To the filing of this amendment, appellant objected. The court, notwithstanding, permitted it to be filed. A demurrer to it was overruled. A. demurrer was sustained to appellant's plea of limitation of one year interposed in avoidance of it. All these rulings raise but the one question, was the amendment germane to the original cause of action sued on,--therefore relating back to the time of the filing of the original petition, so as to save the running of the statute?

The position of appellant is that the original petition, showing affirmatively that the injury and death occurred beyond this state, and in the state of Virginia, and not stating or intimating that there existed in Virginia a statute allowing a recovery for death, stated no cause of action; that we must presume, in the absence of allegations to the contrary, that the common law, only, is in force in Virginia, where the negligent act and death are laid (Valz v. Bank, 96 Ky.

549, 29 S.W. 329, 49 Am.St.Rep. 306); the common law not allowing a recovery for the negligent injury of another resulting in instant death (Eden v. Railroad Co., 14 B. Mon. 204; Hansford's Adm'x v. Payne, 11 Bush, 380), and the statute of Kentucky allowing a recovery for such negligent act and consequent death cannot have any extraterritorial force, and cannot, therefore, embrace an act occurring out of the state (Bruce's Adm'r v. Railroad Co., 83 Ky. 174). It is the argument of appellant that an amendment cannot be allowed to state for the first time a cause of action under a statute by way of amendment to a cause of action sued on under the common law. Gregory v. Railway Co., 20 Mo.App. 448; Bolton v. Railway Co., 83 Ga. 659, 10 S.E. 352. The latter case is mainly relied on as an authority most clearly in point. In that case it was said: "Whenever a suit is commenced in this state, and the plaintiff relies for his right of action and his recovery upon a foreign statute, he must plead said statute. If he pleads it defectively, or shows in some way that he relies upon it, he will be entitled, under our Code, to amend by setting out the statute. *** If, however, he commence his action and relies upon his common-law right, we do not think he can amend his common-law declaration by setting out the statute," etc. We find ourselves unable to agree entirely with the learned Georgia supreme court. Aside from the criticism of this case in Maxw. Code Pl. 579, that application of the rule as affecting amendments does not satisfy our conception of the spirit of code pleading, nor does it appear to be supported by other authority. It is truly said that, unless there was a statute allowing a recovery in this case, then no recovery could be had; for the common law allowed none. The cause of action, however, was not the statute, but the negligent act causing the death sued for. The proper parties appear. The one entitled in fact to bring this suit does so. The cause of the accident, the negligence, its result, and the pleader's claim for relief are all set forth. Each of these statements is equally with every other one essential to the right of recovery,--neither less nor more so than the allegation of the existence of the Virginia statutes. If the injury had occurred in this state, of course, the statute need not have been pleaded. But foreign statutes conferring rights must be pleaded, as any other necessary fact upon which the recovery may be based. Valz v. Bank, 96 Ky. 549, 29 S.W. 329, 49 Am.St.Rep. 306; Templeton v. Sharp (Ky.) 9 S. W. 507, 696. The plaintiff was attempting to set forth in this petition his cause of action against appellant. Not a cause that did not exist (at common law), but the one that did exist, and that necessarily must have been based upon some statute. He alleged a number of essential facts, but omitted one. By this amendment he supplies the one omitted. This does not change the parties, nor the nature of the action, nor the cause of it. It merely perfects that which before was imperfect for lack of that averment. Such is the proper office of all amendments. A true test whether they are germane to the original cause of action attempted to be set out is, would a recovery upon the original action have been a bar to a suit upon the one set out in the amendment?

But it is argued that, as no cause of action was stated in the petition, there was nothing to amend by. And as there was no cause of action stated till the amendment was filed, it was really the beginning of the suit, at which time limitation had become a bar. This much may be said, in one sense, of all necessary amendments. A plaintiff will not be allowed to amend his cause of action by changing it. The office of the amendment is to perfect or complete that which is begun, but is incomplete. "The Civil Code, with a view to a trial upon the merits and the attainment of justice, allows great liberality in this respect, and the lower court should not be controlled in the exercise of power unless it be manifestly abused." Filbin's Adm'r v. Railroad Co., 91 Ky. 446, 16 S.W. 92; Greer v. City of Covington, 83 Ky. 416. As to what will form a basis as a sufficient statement of the original cause of action, upon which perfecting amendments will be allowed, the courts have had numerous instances before them. In Ellison v Railroad Co., 87 Ga. 710, 13 S.E. 813, that court has again passed upon this question. We construe this case as overruling Bolton v. Railway Co., 83 Ga. 659, 10 S.E. 352, the two being in conflict. In the case of Ellison the court undertook a more exhaustive review of the doctrine of amendments under the...