Louisville & N. R. R. Co. v. Whitlow's Admr.

Decision Date10 December 1897
Citation114 Ky. 470
PartiesLouisville & N. R. R. Co. v. Whitlow's Admr.
CourtKentucky Court of Appeals

APPEAL FROM THE WARREN CIRCUIT COURT.

JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. AFFIRMED.

J. A. MITCHELL, FOR APPELLANT.

H. W. BRUCE & WM. LINDSAY, OF COUNSEL.

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B. F. PROCTER, ATTORNEY FOR APPELLEE.

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EDWARD W. HINES AND W. S. PRYOR, FOR APPELLEE.

OPINION OF THE COURT BY JUDGE PAYNTER — AFFIRMING

While T. P. Whitlow was in the service of the appellant as brakeman on one of its trains he is alleged to have been killed by gross and willful negligence of the servants and employes of the appellant in charge of the train. At the time of his death he was a resident of this State, and his father qualified as his personal representative in the Warren county court. That the personal representative had the right to maintain the action, if the liability existed under the laws of Tennessee, can not be questioned. Bruce's Adm'rs v. Railroad Co., 83 Ky., 174; (7 R., 159) Wintuska's Adm'r v. Railroad Co. (14 R., 579), 20 S. W., 819. He seeks to recover by virtue of the statute of Tennessee authorizing a recovery when death results from the wrongful act, fault, or commission of another, and the law as settled in that State in the administration of the statute. It is a well-settled principle in all civilized countries, so far as we are aware, that in matters ex contractu the lex loci contractus governs the construction and the validity of the contract, and that the lex fori governs the remedy. This principle is so familiar it would be waste of time to cite elementary authorities or adjudged cases in support of it. As an amplification of the doctrine, it may not be inappropriate to quote from Scudder v. Bank, 91 U. S., 406, wherein it is said: "Matters bearing upon the execution, the interpretation, and the validity of the contract are determined by the law of the place where the contract is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy, such as the bringing of suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought. A careful examination of the well-considered decisions of this country and of England will sustain these positions." We can see no reason why the doctrine as established as to actions ex contractu may not be applied to actions ex delicto. There seem to be but few decisions on the question. In the case of Nonce v. Railroad Co., 33 Fed., 434, it was held that there is no distinction on the subject between actions ex contractu and ex delicto. Herrick v. Railway Co., 31 Minn., 11, 16 N. W., 413, was an action ex delicto, and the court held that the law of the place where the right was acquired or the liability incurred governs as to the right of action, while all that pertains merely to the remedy is controlled by the law of the State where the action is brought, thus recognizing the principle as the same where the right of action is ex contractu or ex delicto. The question presented to the court is whether the Kentucky or Tennessee law as to contributory negligence applies. Under the Tennessee law, if the intestate was himself guilty of negligence that contributed to his injury and death, yet if the defendant was guilty of negligence which was the direct and proximate cause of the intestate's injuries and death, then the plaintiff is entitled to recover, but the damages recoverable should be reduced or mitigated by reason of the intestate's contributory negligence. Under our law, if the intestate was guilty of such contributory negligence except for which his injuries and death would not have occurred, then there can be no recovery. Contributory negligence, under our rule, is never applied to the mitigation of damages. The question is whether the contributory negligence relates to the right or to the remedy. The right to plead a counterclaim or a set-off relates to the remedy. In Davis v. Morton, 5 Bush, 160, it was held that the defendant was allowed to plead a set-off to a note, although not allowed by the laws of Tennessee, where the note was executed. Under our system of pleading, counterclaims in certain cases are allowed. A counterclaim, under our system of pleading, is a cause of action against the plaintiff, or against him and another, which arises out of the contract or transaction stated in the petition. A set-off is a cause of action upon a contract, judgment, or award in favor of the defendant against plaintiff, or against him and another, and it can not be pleaded except in an action upon a contract, judgment or award. The defendant who pleads a counterclaim admits the contract or transaction, and seeks a recovery on his counterclaim growing out of it. The defendant who pleads a set-off admits his liability on the cause of action stated in the petition, but claims he is entitled to a credit by way of set-off. The plea of the statute of limitations generally relates to the remedy. In pleading the statute of limitations, the defendant admits that the cause of action or liability existed, but says that the plaintiff has slept too long on his rights, and his right to recover is barred. This is a defense which arises after the liability is incurred. The existence of the right to plead a counterclaim, a set-off, or the statute of limitations does not show that the cause of action did not exist, but, on the contrary, admits its existence. When we say that a counterclaim or a set-off is a matter relating to the remedy, we mean that if they exist they may be relied upon as a defense to the action. Suppose, however, that, under the lex loci contractus, they did not exist, we could not say that, had the transaction occurred in the State, the liability therefor would have existed. Therefore they are available as defenses in this State. To do this would be to utterly disregard the lex loci. It would be creating a liability or...

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