Walter's Admr. v. Ky. Traction & Terminal Co.

• Decision Date: 09 December 1924
• Citation: 206 Ky. 100
• Parties: Walter's Admr. v. Kentucky Traction & Terminal Company.
• Court: Kentucky Court of Appeals

Page 100

206 Ky. 100

Walter's Admr. v. Kentucky Traction & Terminal Company.

Court of Appeals of Kentucky.

Decided December 9, 1924.

Appeal from Bourbon Circuit Court.

R. E. L. MURPHY and A. B. THOMASON for appellant.

ALLEN & DUNCAN and WALLACE MUIR for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE SAMPSON — Affirming.

William D. Walter, a resident of Fayette county, Kentucky, was struck by an interurban car of appellee traction company at Warrentown, in that county, and killed on the 19th of March, 1921. The judgment from which this appeal is prosecuted was rendered in an action brought in the Bourbon circuit court by L. D. Harris as administrator of Walter against the traction company, alleging that death of Walter was the result of the gross negligence and carelessness of the traction company in the operation of its car, and praying damages in the sum of $50,000.00 for his death. In the petition it is averred, "That William D. Walter died a resident of Fayette county, Kentucky, on or about the 19th day of March, 1921, intestate; that by proper orders of the Bourbon county court the plaintiff was duly appointed administrator of the estate of said William D. Walter; . . . that the defendant, Kentucky Traction and Terminal Company, is a corporation, . . . with power to sue and be sued and to contract and be contracted with, and that the defendant at the time of the injuries herein complained of operated and still operates a line of railway with interurban cars running thereon through the counties of Fayette, Bourbon, Woodford and Franklin, in the state of Kentucky." It is further averred, "That while decedent, William D. Walter, was in the act of or attempting to cross the railroad lines of the said defendant at or about a crossing known as stop No. 8 on the said railway line, and in the said town of Warrentown, the defendant, its agents, servants and employes with gross negligence and carelessness ran one of the defendant's cars into, against and upon decedent, causing such injuries to the decedent that he died a few minutes thereafter; that the injuries complained of were received and suffered in Fayette county, Kentucky." By amended petition appellant averred that prior to and at the times mentioned in the petition of plaintiff, L. D. Harris, he was a resident of Bourbon county, Kentucky, and that he is now a resident of Bourbon county, Kentucky. To the petition, as amended, appellee company filed a special demurrer, "Because the court has no jurisdiction to try the case and no jurisdiction over the subject matter, and because the plaintiff has not legal capacity to sue." This demurrer was sustained by the trial court, and the petition dismissed. Appellant saved exceptions and now prosecutes this appeal.

Appellant insists that the Bourbon circuit court had jurisdiction to try the case and the plaintiff, as administrator of the deceased, had legal capacity to maintain an action in Bourbon county. Section 73 of the Civil Code reads:

"Excepting the actions mentioned in section 75, an action against a common carrier, whether a corporation or not, upon a contract to carry property must be brought in the county in which the defendant, or either of several defendants, resides; or in which the contract is made; or in which the carrier agrees to deliver of the property. An action against such carrier for an injury to a passenger, or to other person or his property, must be brought in the county in which the defendant, or either of several defendants, resides; or in which the plaintiff or his property is injured; or in which he resides, if he reside in a county into which the carrier passes."

Appellant's brief is devoted to an argument to the effect that an administrator of a decedent may bring and maintain a suit in the Bourbon circuit court to recover damages for the death of a resident of Fayette county, Bourbon being the county of the residence of the administrator. In the case of C. & O. Railway Company v. Heath's Admr., reported in 87 Ky. 651, we said:

"Where the...