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

• Citation: 28 S.W. 477,96 Ky. 297
• Parties: LOUISVILLE & N. R. CO. v. BRANTLEY'S ADM'R.
• Decision Date: 24 November 1894
• Court: Court of Appeals of Kentucky

28 S.W. 477

96 Ky. 297

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

Court of Appeals of Kentucky.

November 24, 1894

Appeal from circuit court, Christian county.

"To be officially reported."

Action by Bluford B. Brantley, as administrator of John L. Brantley deceased, against the Louisville & Nashville Railroad Company, to recover for personal damages to his intestate. Judgment for plaintiff, and defendant appeals. Reversed.

Joe McCarroll, for appellant.

Edward W. Hines, John S. Bays, W. A. Cullok, and Jas. Breathitt, for appellee.

PRYOR J.

Bluford B. Brantley, as the administrator of John L. Brantley deceased, states in substance that this decedent departed this life in July of the year 1891; that he was appointed and qualified as the administrator of his estate by order of a court of competent jurisdiction in the state of Indiana, it being the state where the decedent resided at his death, and where the plaintiff now resides. He then files what purports to be a copy of the letters of administration, etc. He further alleges that the decedent lost his life while in the service of the appellant, the Louisville & Nashville Railroad Company, and when in its employ as brakeman, running its trains between certain terminal points in this state; that he was seriously injured, his legs cut off, and he suffered for days great bodily and mental suffering, and for this suffering and loss of time he is seeking to recover. It is further alleged that the injury resulted from the gross and willful negligence of one of its employés, superior in authority to the decedent. There was a general demurrer to the petition, and it was overruled. An issue was then formed on the pleadings, and the case went to trial, with a verdict returned by the jury as follows: "We, the jury, find the defendant guilty of ordinary negligence, and assess the damages at five thousand dollars. Alex Garland," one of the jury. There is no bill of evidence in the record, and we have before us only the instructions given by the court, and the latter's reasons for refusing to grant a new trial. Only so much of the petition is given as presents, in our opinion, the question raised by the demurrer, as the specific facts alleged constitute a cause of action, if the appellee can maintain it, and the only question is: Can a foreign administrator sue in this state for a personal injury to his intestate, committed in this state, as is alleged, by the negligence of the defendant; and, if he cannot sue, must the objection be taken advantage of by special demurrer, and, if not, is the objection waived? There was a general demurrer only, and it is urged that the provision of the Code requiring, where the want of legal capacity to sue appears on the face of the petition, the objection to be raised by special demurrer, applies here. Civ. Code, § 92. We think such a view is an entire misconception of the law. The doctrine is elementary that an action must be brought in the name of a party in interest, and at common law the legal right to sue must appear. Where one has neither a legal nor beneficial interest in the controversy, either in his own right or as the representative of another, and this appears on the face of the petition, the objection can be, and is properly, raised by a general demurrer. His legal capacity to sue is not involved, but his right to maintain the action either in his own right or as a personal representative. The provision of the Code requiring a special demurrer to be filed where the legal capacity to sue is wanting has no application to a case like this. An infant has no legal capacity to sue, and must bring the action by his prochein ami or guardian; but, having a legal or beneficial interest in the subject-matter of the action, and the right of recovery, the defense will not be allowed to plead or demur generally, and then, after verdict or judgment, take advantage of the infancy of the plaintiff, or the want of legal capacity on the part of the plaintiff to sue. It is in cases where the petition on its face discloses an interest in the subject-matter of the action, and also discloses a want of capacity to sue, that the question of a want of legal capacity arises. But where the petition shows that the party plaintiff is not interested in any way in the litigation, or in other words, can maintain no such action, the objection can be made by a general demurrer. The doctrine, I believe is universal that an administrator appointed in a foreign state can maintain no action in another state unless authorized by statute, and, if there is no authority given the foreign administrator to sue here in such a case as the one presented, the general demurrer should have been sustained.

The appellant admits by his demurrer that the appellee qualified as the administrator of the decedent in the state of Indiana and that all the facts alleged in the petition are true, and then the question arises, is the appellee, the foreign administrator, entitled to recover? It is insisted that this court, in the case of Warfield v. Gardner's Adm'r, reported in 79 Ky. 583, and in previous cases, has decided this question. That action was by the administrator of Gardner upon a note given by the appellants to his intestate. There was a general demurrer to the petition, and overruled. It was averred in the petition that the appellees were appointed by an order of the Hardin county court administrators of the decedent, and had qualified as such. The court held that this was a substantial compliance with the Code, and all that was necessary for the appellees to allege as to their appointment; and the objection that the petition failed to state facts showing the county court of Hardin had jurisdiction to appoint them administrators involved their legal capacity to sue, and must be taken advantage of by special demurrer, and, as no special demurrer was filed, the objection as to the want of the averment failed. This is sound law and correct practice. It is conceded that where one cannot sue by reason of some personal disability or want of capacity to sue, under the Code the question must be raised by special demurrer or by a special plea. Suppose the plaintiff had alleged his qualification as administrator, and his appointment by the properly constituted authorities, without alleging where he had qualified, and the defendant, instead of demurring to the defective petition, had pleaded in bar of his recovery that he had been appointed and qualified in a foreign state, would not the plea have been good unless the statute was so construed as permitted a recovery by foreign administrator for a mere tort? We think so. Nor would it be a bar to the recovery by one authorized to sue, but it would be a bar to an action by the plaintiff as the representative of the decedent under his appointment from the state of Indiana. If a bar to the recovery by the foreign administrator upon the facts being proven, when pleaded, why, when these same facts appear in the petition, may not the defense demur generally when from the plaintiff's own showing he has no standing in court? The plaintiff must so connect himself with the subject-matter of the action as to show a right of recovery, either in his own right or as the legally qualified representative of another, and when he fails to do so the petition is bad on demurrer. In Langdon v. Potter, reported in 11 Mass. 315,-a case very similar to the one before us,-there was nothing in the declaration showing that administration had not been granted in the state of Massachusetts, and the legal inference, the court said, was that it had been so granted. The right of the plaintiff to prosecute the action was not questioned, and, after several pleas to the merits, the objection was for the first time raised, and the court said it was too late, but also said it was a plea in disability of the plaintiff, and did not touch the merits of the action. And the court proceeded further to say: "We have no doubt the objection relied on in this case is pleadable in bar, and in the present stage of the action it must be so pleaded." In Fenwick v. Sear's Adm'rs, 1 Cranch, 259, and in Dixon's Ex'r v. Ramsay's Ex'r, 3 Cranch, 319, a special plea in bar was sustained; and in Noonan v. Bradley, 9 Wall. 394, the Massachusetts case is referred to as settling the conflicting decisions, and yet it is held in that case a plea in bar is the proper remedy. Why the necessity of a plea in bar when the petition discloses what the plea must state? The appellee sues as a foreign administrator, and makes profert of his title, and, as said in Noonan v. Bradley: "It is only in virtue of his representative character that the plaintiff is entitled to the matters in controversy, and a plea which denies to him that character is in its nature a plea in bar to the action." Where the petition discloses a defense that defeats the action, such as a want of title, legal or equitable, or any other defense that can be pleaded in bar except such defenses as are privileged, and do not affect the cause of action, as infancy or limitation, a general demurrer will be sustained. In the case of Adams v. Terre-Tenants of Savage, 6 Mod. 134, the plaintiff recited in the proceeding the manner and place he had obtained letters of administration, which showed...