Vassill's Adm'R v. Scarsella
| Decision Date | 20 November 1942 |
| Parties | Vassill's Adm'r et al. v. Scarsella. |
| Court | United States State Supreme Court — District of Kentucky |
6. Constitutional Law. — A reasonable classification may be made against nonresidents of the state making the classification, provided the classification is reasonable and the foreign rights attempted to be asserted in the courts of the state, foreign to the probate appointing court, may be done within the jurisdiction of foreign invoked forum (U.S.C.A. Const., art 4, sec. 2; Amends. 5 and 14, sec. 1).
7. Constitutional Law. — The denial of a foreign administrator's right to maintain action for wrongful death occurring in Kentucky because he had not complied with Section 3878 of Kentucky Statutes, and denial of the right to substitute domestic or ancillary administrator as plaintiff more than one year after decedent's death, infringed no constitutional rights guaranteed by the 5th or 14th Amendment to the Federal Constitution, or Article 4, Section 2, of the Federal Constitution guaranteeing to the citizens of one state "immunities and privileges" extended to citizens of the state in which such discrimination is alleged to have been made (Ky. Stats., secs. 2516, 3878; U.S.C.A. Const., art. 4, sec. 2; Amends. 5 and 14, sec. 1).
Appeal from Garrard Circuit Court.
Charles J. Walker, H.C. Kauffman and George S. Hawke for appellants.
Clay & Clay and Davis, Boehl, Viser & Marcus for appellee.
Before K.S. Alcorn, Judge.
Affirming.
On February 5, 1940, while riding in an automobile on a public highway in Garrard county, as an invitee of defendant and appellee, Leslie Scarsella — the owner and then operator of the automobile — Helen Vassill, as the result of a collision with another automobile, was instantly killed, she then being a young lady 16 years of age, and residing with her father in his home in Cincinnati, Ohio, the defendant being a resident of the state of California; therefore, both defendant and deceased were nonresidents of this Commonwealth. In due time appellant and plaintiff below, John Vassill, father of deceased, qualified in Hamilton county, Ohio, in which he resided, as personal representative of the estate of his deceased daughter. As such — and without complying with the provisions of Section 3878 of Baldwin's 1936 Revision of Carroll's Kentucky Statutes — he filed this ordinary action in the Garrard circuit court against defendant to recover damages from the latter because of his alleged negligence in the operation of his automobile, then being driven by him, so as to cause the collision, resulting in the death of plaintiff's daughter as an invitee of defendant, to whom he owed the exercise of ordinary care for her safety.
Defendant was brought before the court by serving summons on the Secretary of State of this Commonwealth, pursuant to the provisions of Chapter 80, page 247 of the Session Acts of 1930, and which is now Sections 12-1 to and including 12-7, in our present edition of the Statutes, supra, the validity of which was sustained by this court in the case of Hirsch v. Warren, 253 Ky. 62, 68 S.W. (2d) 767. The petition on its face expressly reveals the facts we have recited. Defendant made no objection to the jurisdiction of the court over his person by questioning in any manner the Process Serving Act above referred to, and his first appearance was to move that plaintiff execute bond for costs, inasmuch as he was a non-resident of this state, which was complied with. The next step in the case taken by defendant was to require plaintiff to file with his petition, as an exhibit thereto, the orders of the foreign court in Ohio appointing him administrator of the estate of his daughter, to which he referred in his petition but had not filed the exhibit as therein stated. That motion was also complied with by plaintiff. Defendant then filed a general demurrer to the petition, which the court sustained on July 30, 1941, with leave to amend.
On August 4th thereafter, plaintiff in conjunction with a domestic or ancillary administratrix of the deceased — who was appointed as such by the county court of Garrard county on July 30, 1941 — tendered an amended petition setting out the fact of the appointment of the ancillary representative (Frankie Kauffman) and adopted the averments of the original petition, filed solely by the foreign representative and asked that the domestic representative "as ancillary administratrix be permitted to prosecute this action, and that she be made a party plaintiff thereto," ets. Objection was made by defendant to the filing of that amendment upon the ground that more than a year had elapsed from the time of the fatal accident to the deceased and the appointment of the ancillary domestic representative of her estate, and as a consequence more than a year had also elapsed following such accident at the time of the tendering of the amendment. The court sustained the objections of defendant and declined to permit the amendment to be filed, followed by a dismissal of the petition after plaintiff declined to plead further, to reverse which this appeal is prosecuted.
The prescribed limitations to recover for the wrongful causing of the death of another is, by Section 2516 of our statutes, supra, required to be brought within "one year next after the cause of action accrued, and not thereafter." In the case of Faulkner's Adm'r v. L. & N.R.R., 184 Ky. 533, 212 S.W. 130, the statute was construed to require the action to be brought by the administrator of the deceased person within one year from his death as the period when "the cause of action accrued" and not one year after the appointment of the representative. So that in this case, plaintiff's petition and the tendered amended petition showed these expressly stated facts — that plaintiff possessed no authority to bring this action in the courts of Kentucky to recover for the negligent death of his daughter, also occurring in Kentucky, save and except what might emanate, if any, from his appointment as administrator of his daughter's estate by the foreign probate court in Cincinnati, Ohio; and that the local ancillary representative of the same estate was not appointed until limitations had run in Kentucky against the right to prosecute such an action by anyone, and of course, the same time had expired when the tendered pleading was offered.
It is the contention of counsel for plaintiff that although the tendered amendment was offered after the expiration of the limitation period for bringing the action by the proper plaintiff (the ancillary domestic one), and although such proper plaintiff was not qualified to be such until after the expiration of the same period, yet the amendment was not the beginning of a new action by the only one who could maintain it under our law (having its inception from the time of the tendered amendment), but that it related back to the date of the filing of the action by plaintiff as foreign administrator of his deceased daughter, and thereby saved the action from death under the sentence of the limitation statute. The opposite contention is made by counsel for defendant, and which opposing contentions present the first question to be determined.
The personal representative who may bring such an action is one appointed by, or who qualifies in, the proper court in this Commonwealth, and which excludes the right of a foreign representative to maintain such an action, and especially so if he, she or it has not complied with the provisions of Section 3878, supra, of our statutes. Whether that statute applies only to actions to recover debts of a decedent in jurisdictions foreign to that of the appointment of the personal representative, and has no application to recover for injuries or death produced by tortious action committed in foreign jurisdictions, is one not urged or discussed. In any event, the action as originally brought, as we have seen, was shown by the petition to be one which the plaintiff therein had no right in law to maintain, and being such it would logically appear to possess no legal effect whatever, and...
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Cottengim's Adm'r v. Adams' Adm'x
...Irwin v. Smith, 150 Ky. 147, 150 S.W. 22; Faulkner's Adm'r v. Louisville & N. R. Co., 184 Ky. 533, 212 S.W. 130; Vassill's Adm'r v. Scarsella, 292 Ky. 153, 166 S.W.2d 64. In the Simrall opinion will be found a discussion of the origin of the statute allowing recovery for wrongful death (whi......