112 Ky. 431 | Ky. Ct. App. | 1899
Opinion op the court by
Reversing.
This action was brought by the widow of John Shumaker, deceased, as administratrix of his estate, to recover damages for the loss of his life, which is‘ alleged to have been caused by the negligence of the appellant.
The first question to be considered in the judgment of the court upon the plea in abatement. The' occupation of the intestate was that of brakeman on railroads. On September 12, 1895, his residence was Madison county, Ky. .On that day, having severed his connection with an
“Section 3894. When any person shall die intestate, that court shall have jurisdiction to grant administration on his estate that would have had jurisdiction to probate his will, had he made one.”
“Section 4849. Wills shall be proved before and admitted to record by, the county court of the county of the! testator’s residence; if he had no known place of residence in this Commonwealth, land land is devised, then in the county where the land, or part thereof, lies; if no land is devised, then in the county where he died, or that wherein his estate, or part thereof, shall be, or where there may be any debt or demand owing to him.”
The first part of section 4849 evidently relates to a testator where ’the county of his residence in the Common, wealth is known. The next part of the section relates to a resident of the Commonwealth, but whose place of residence therein is unknown. When this is the case,
It is urged that the meaning of the section, “If [the decedent] had no known place of residence in this Commonwealth,” has reference to a person who was a nonresident of the Commonwealth at the time of his death. The language of the section, taken as a whole, shows that it has reference to residents of the Commonwealth, but this is not an open question. Section 27, c. 106, 2 Stanton’s Revised Statutes, is the same as section 4849, Kentucky Statutes. This court, in Thumb v. Gresham, 2 Metc., 306, adjudged that section referred to residents of the State. The case of Railroad Co. v. Brantley’s Adm’r, 96 Ky., 308, (16 R. 691) 28 S. W., 477, was an action by a nonresident administrator of a nonresident decedent for damages resulting from his death; and this court held that the action could not be maintained by such nonresident administrator, because the damage sought to be recovered was not a debt due .such decedent. The case of Brown’s Adm’r v. Railroad Co., 97 Ky., 233, 305 (17 R. 145) (30 S. W., 639) W. 639, was an action hy an administrator appointed in this State on the estate of a decedent who wa.s a nonresident of the State at the time of his death, but he had no personal estate in Kentucky other than the demand given by the Kentucky Statutes to personal representatives of decedents who have been killed by negligence, etc. In that case the court, in discussing the question of the power of a county court in Kentucky to make the appointment of a personal repre
As this case will go back for a new trial, we 'deem it unnecessary to enter into a discussion of the facts; and give the reasons for reaching the conclusion that the case was one which the court properly submitted to the jury. Were we in doubt on this question, then the fact that two verdicts have been returned for the administratrix would make us hesitate to say the facts were not such that the
Except one, the instructions are 'faultless, and that one is on the measure of 'damages. It is instruction No. 2, and reads as follows: “If your verdict be for the plaintiff, it shall be for such sum, not exceeding $80,000, the amount claimed, as will reasonably compensate the wife and child, of deceased.on account of the lo’ss iof his life; and the elements to be considered by you in determining this compensation are the age and health of deceased, and his capacity for earning money; and the probable duration of his life.” Under the Kentucky Statutes, an action to recover damages for' the loss of life must be brought by the personal representative of decedent, while under the General Statutes, as construed by this court, there could be no recovery for the loss of life unless the decedent left a wife or child. Under the present law the personal representative can maintain an action to recover damages, and is entitled to recover same, where a cause of action exists, as he would be if the decedent left neither wife nor child. The recovery goes to the estate of the deceased. The statute provides how and to whom a recovery shall be distributed. The persons who are to receive the estate are not parties to the action. This court, in the cases of Oil Co. v. Tierney, 92 Ky., 377, 18 R. 626 (17 S. W., 1025); Railway Co. v. Sampson’s Adm’r, 97 Ky., 65 (16 R. 819), (30 S. W., 12); Railroad Co. v. Eakins’Adm’r (103 Ky., 465), (20 R. 736), (45 S. W., 529); Railroad Co. v. Kelley’s Adm’x 100 Ky. 421 (19 R. 69), 38 S. W., 852, — adjudged that it was not competent to prove that the decedent or injured party had a wife and children depending upon him for support, and the reasons for so holding are elaborately discussed in the Ealdn case. In the casé under consideration it was proven without objection that