Taylor's Adm'r v. Pennsylvania Co.

• Decision Date: 28 February 1880
• Citation: 78 Ky. 348
• Parties: Taylor's adm'r v. The Pennsylvania Company.
• Court: Kentucky Court of Appeals

78 Ky. 348

Taylor's adm'r v. The Pennsylvania Company.

Court of Appeals of Kentucky.

February 28, 1880

1. A personal representative has no rights nor powers beyond the jurisdiction of the state under whose laws he received his appointment. He cannot receive his appointment in Kentucky and appeal in this state to the statutes of Indiana to recover damages for injuries to the decedent caused by a railroad company in that state.

2. An administrator appointed in Kentucky, and suing in this state must be able to show that the laws of this state entitle him to recover the thing sued for.

APPEAL FROM JEFFERSON CIRCUIT COURT.

M MUNDAY FOR APPELLANT.

No brief.

CHAS H. GIBSON FOR APPELLEE.

1. The Jefferson circuit court has no jurisdiction to try and determine this cause.

2. The plaintiff has no legal capacity to prosecute this action. (23 N.Y. 465; 30 Barb., 99; 18 Ill. 349; 45 Maryland, 177 Shearman & Redfield on Negligence, 296; 71 Ill. 344; 98 Mass. 85; 4 Allen, 233; 12 Ibid, 438; 4 Ill. 521; 22 Ill. 609; 10 Ohio 121.)

OPINION

COFER JUDGE:

The appellant, as administratrix of her deceased husband, William Taylor, brought this action in the Jefferson circuit court against the appellee to recover damages for the loss of the life of her intestate through the negligence of the appellee.

The petition showed that the intestate was domiciled in Jefferson county, in this state, at the time of his death; that the appellant was appointed administratrix by the county court of that county, and it also showed that the intestate was killed in the state of Indiana while acting in the capacity of brakeman on one of the appellee's trains.

The action was based on an Indiana statute, which provides as follows:

" When the death of any one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed five thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased."

The appellee demurred, and the court sustained the demurrer and dismissed the petition.

By the rules of the common law no civil action could be maintained by any one for the death of a human being. But both in England and in many of the states of our Union this defect in the common law has been remedied by statute.

In some states a right of action is given to the widow and children of the deceased, and in others it is given to his personal representatives.

In this state the right of action in one class of cases is given to the widow and children (or either or any of them) of the person killed. (Sec. 6, chap. 1, Gen. Stat.)

In another class the right is given to the personal representative alone (sec. 1, chap. 57, Gen. Stat.); and in still another class to the widow, heir, or personal representative. (Sec. 3, chap. 57.)

In Indiana, Illinois, Ohio, and New York, and perhaps in other states, the right of action is given to the personal representative, but the recovery is declared to be for the exclusive benefit of the widow and children or next of kin of the decedent.

Under these statutes the recovery is not an asset in the hands of the administrator, to be disposed of as the estate of the decedent, but he takes it as trustee for those who are declared by the statute to be beneficiaries. (Chicago v. Major, 18 Illinois, 349; Woodard v. Railroad Company, 10 Ohio St. R., 121.)

As said in the latter case, " it is a right of...