Louisville & N.R. Co. v. Spears' Adm'r

• Decision Date: 17 June 1921
• Citation: 232 S.W. 60,192 Ky. 64
• Parties: LOUISVILLE & N. R. CO. v. SPEARS' ADM'R.
• Court: Kentucky Court of Appeals

232 S.W. 60

192 Ky. 64

LOUISVILLE & N. R. CO. v. SPEARS' ADM'R.

Court of Appeals of Kentucky.

June 17, 1921

Appeal from Circuit Court, Rockcastle County.

Action by the administrator of Garrett Spears against the Louisville & Nashville Railroad Company to recover damages for the death of plaintiff's intestate. Judgment for plaintiff, and defendant appeals. Affirmed.

Benjamin D. Warfield, of Louisville, and J. W. Brown and C. C Williams, both of Mt. Vernon, for appellant.

L. L Walker, of Lancaster, and L. W. Bethurum, of Mt. Vernon, for appellee.

QUIN J.

On August 10, 1917, Garrett Spears boarded a train at Rowland destined for Crab Orchard, Ky. As the train approached the latter place, the flagman announced the station, and Spears who was in the smoker, went to the platform of that car, and when the train reached a point about 450 feet west of the station Spears either stepped or was thrown from the car and instantly killed. In this suit, instituted by his administrator, a recovery was had, to reverse which this appeal has been prosecuted.

Lincoln county was (a) the scene of the accident, (b) the residence of the decedent, and (c) the place where the administrator was appointed, although the action was filed in the Rockcastle circuit court. The company filed a special plea to the jurisdiction of the court, relying chiefly upon General Orders Nos. 18 and 18a, issued by the Director General of Railroads, on April 9 and 18, 1918, respectively, and in the last of which said orders it is provided that all suits against carriers, while under federal control, must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action, or in the county or district where the cause of action arose. An act of Congress, approved August 29, 1916 (U. S. Comp. Stats. 1918, § 1974a), authorized the President in time of war to assume control of the transportation systems of the country, pursuant to which authorization the President, on December 28, 1917, took charge of the railroads of the United States, placing same under the control of the Director General.

The petition in this case was not filed until July, 1918; but, inasmuch as the accident had happened and the cause of action accrued prior to federal control, this action was properly instituted against the railroad company, and not the Director General. In taking control of the railroads, the government did not assume any liability or obligation arising from operation prior to December, 1917; hence the liability, if any, was that of defendant, and the administrator was authorized to look to defendant for any damages growing out of the death of his intestate.

Under Civil Code, § 73, an action against a common carrier for injuries must be brought (a) in the county in which the defendant resides, or (b) in which the plaintiff or his property is injured, or (c) in which he (plaintiff) resides, if he resides in a county through which the carrier passes. It is insisted that the reference to the plaintiff in the Code provision, supra, is to decedent, and I. C. R. R. Co. v. Willis' Adm'r, 123 Ky. 636, 97 S.W. 21, 29 Ky. Law Rep. 1187, is cited in support of this contention.

Ky. Stats. § 6, authorizes the institution of an action for damages on account of the death of a person resulting from injuries inflicted by negligence, and provides that such action shall be prosecuted by the personal representative of deceased, from which it follows that plaintiff could be none other than the personal representative. The purpose of the Director General in fixing the venue of actions was to prevent the institution of suits in jurisdictions far removed from the place where defendant was located, or where the cause of action arose. Otherwise trainmen would oftentimes be required to leave their trains and attend court as witnesses hundreds of miles from their work, thus necessitating their absence from their trains for days, a practice which was not only highly prejudicial to the government's interests, but one that seriously interfered with the physical operation of the roads.

No doubt the framers of the Code provisions, supra, had a like purpose in mind, to wit, one that looked to the convenience of all parties; for instance, suit could be maintained in the county of the defendant's residence, or the county in which the injury was inflicted, or in the county of plaintiff's residence, provided the carrier passed through such county. The design of the last clause was to fix the situs of the action convenient to the plaintiff, and yet not inconvenient to the defendant. The fact that plaintiff resides in the county where suit is brought would make it convenient for him, and the fact that defendant's road passed through the county would insure that it would not be unreasonably inconvenienced thereby. It seems clear, therefore, that where the person injured is dead the home of the personal representative is the one referred to, because he is the one who must look after and prosecute the suit. It would not do to say that deceased was the plaintiff, because his convenience can no longer be consulted, nor could he have any connection with or take any part in the trial of the action. It follows, therefore, that "plaintiff," as used in the Code provisions, supra, means the administrator in whose name the action must be instituted, and who is authorized to bring the action in the county of his residence, if the carrier passes into or through said county. In so far as I. C. R. R. Co. v. Willis' Adm'r, supra, holds to the contrary, it is overruled. See L. & N. R. R. Co. v. Gilliam's Adm'x, 71 S.W. 836, 24 Ky. Law Rep. 1536; Turner's Adm'r v. L. & N. R. R. Co., 110 Ky. 879, 62 S.W. 1025, 23 Ky. Law Rep. 340; I. C. R. R. Co. v. Stith's Adm'x, 120 Ky. 237, 85 S.W. 1173, 27 Ky. Law Rep. 596, 1. L. R. A. (N. S.) 1014; L. & N. R. R. Co. v. Hoskins' Adm'r, 108 S.W. 305, 32 Ky. Law Rep. 1263; 27 R. C. L. 803. It matters not whether the suit is governed by Civil Code, § 73, or the orders of the Director General; the effect is the same. The personal representative being the plaintiff, he may, if he so desire, bring the action in the county of his residence if the carrier passes into or through said county.

It is next urged the case pleaded was not the one proved, and for this reason a motion for a directed verdict should have been sustained.

It is alleged in the petition that, upon the arrival of the train at Crab Orchard, an employé of the company called said station, the train stopped, the flagman walked out on the station platform and again called out said station, and directed the passengers whose destination was Crab Orchard to alight from the train, and it was upon this invitation that deceased walked onto the platform of the car to get off at Crab Orchard; but just as he reached the car platform there was a sudden, unnecessary, and violent jerk of the train, which threw him with great force from the platform of the car to the station platform, causing his instant death. The evidence shows the accident did not happen at the station, but at least 450 feet before the train reached Crab Orchard. The allegata and probata must agree, and when there is a material...