Louisville & N.R. Co. v. Kimbrough

• Decision Date: 07 May 1903
• Citation: 74 S.W. 229,115 Ky. 512
• Parties: LOUISVILLE & N. R. CO. v. KIMBROUGH.
• Court: Kentucky Court of Appeals

74 S.W. 229

115 Ky. 512

LOUISVILLE & N. R. CO. v. KIMBROUGH.

Court of Appeals of Kentucky.

May 7, 1903

Appeal from Circuit Court, Logan County.

"To be officially reported."

Action by Fred Kimbrough, by his guardian, against the Louisville &amp Nashville Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

W. F Browder, J. C. Browder, and E. W. Hines, for appellant.

E. B Drake, for appellee.

O'REAR J.

Appellee aged about 13 years, while stealing a ride on one of appellant's passenger trains, in Logan county, fell or was pushed from the steps of the rapidly moving car on which he was riding, and was severely injured. He had been a resident of Clarksville, Tenn., but had abandoned his home there (if it can be said that he had a home there), with the intention of making his home in this state. He was a waif, abandoned by his mother when he was about six months old, and his father is unknown. Whether his mother was living, or, if living, where, was not shown. In his suit to recover damages from the railroad company, brought by his statutory guardian appointed by the Logan county (Ky.) court after his injury, the first question presented was upon the jurisdiction of the Logan county court to appoint the guardian--for the right of the guardian as such to maintain this action is denied.

Domicile is correctly defined as being either one of origin, of choice, or by operation of law. Every person must be assigned to one of these. So that the place of the residence of the father of a legitimate child, or, if illegitimate, of its mother, at its birth, is its domicile of origin. As an infant is incapable of changing its domicile by choice (Munday v. Baldwin, 79 Ky. 121), it follows that wherever may be the domicile of its father, if it is legitimate, or otherwise of its mother, controls. But where the child has neither legal father nor living mother, and where neither is shown to have maintained a domicile at any place, then it must follow that the child's domicile must be fixed by operation of law. If the mother's domicile was shown, the child's would be accordingly settled. But here is a waif, knowing nothing of its parents, and of whom nothing can be shown, stranded in a community within this commonwealth. It probably has a certain right to property. Society is interested, alike from motives of humanity and of policy, in preserving to such one that which, if his, will likely save him from being a charge upon the public. The authorities of this state under its laws have taken charge of the person of this derelict, and committed him to the almshouse. They have fixed him a domicile, for the very good reason, in this case, that he appeared to have none other, and it was necessary that he have one. Therefore the law will make him one. The fiction of the law that his mother's domicile, if living, or, if dead, her last domicile, was his, should yield to the more practical fact that, being found a wanderer and an outcast, the law will take charge of him for his good and for that of the state; it will fix his status in the social state as affects his rights, the right of control of his person, and the charge of his property. The state has "adopted" him, as it were; has fixed his residence, his place of abode. It is meet that it should, having thus taken charge of his person, whether with or without his consent, also provide officials to take charge of and represent his property interests. Our statute (section 2015, Ky. St. 1899) provides: "The court of the county in which the minor resides at the time of the appointment shall have jurisdiction" to appoint his guardian. We are of the opinion that the county court of Logan county, prima facie, had jurisdiction to appoint the guardian suing in this case.

The boy was riding on the rear steps of the Pullman car attached to appellant's northbound passenger train. The petition alleged that either the servants of the Pullman Company "or" the servants of appellant pushed and kicked appellee from the moving train. It is now urged by appellant that the petition was defective in that it failed to state a cause of action against either of the defendants; that our Code provision (Civ. Code Prac. § 113, subsec. 4) allowing charges in the alternative did not extend to charging alternative defendants with a single wrongful act. L. &amp N. R. R. Co. v. Ft. Wayne Electric Co. (Ky.) 55 S.W. 918. Without motion to compel appellee to elect which of the defendants he would prosecute, and without demurrer, appellant tendered an...