206 Ky. 100 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
William D. Walter, a resident of Fayette county, Kentucky, was struck by an interurban car of appellee traction company at War rento wn, 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
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 admin
“Where the action for the personal injury survives or where the personal representative may recover for the personal injury or for the death of the intestate, he may sue in the same manner and in the same jurisdiction that the party injured could have sued if he had survived the injury. ’ ’
In the case of Turner, Admrx. v. Louisville & N. R. Co., 110 Ky. 879, we observed:
“This rule as to a plaintiff is well established and is universal where the question of citizenship arises on petition for removal to the United States courts, and other like questions. John E. Turner is dead, and, of course, is not a plaintiff; and so, to fix jurisdiction and citizenship, the personal representative is always held to be the plaintiff. We are of the opinion that it appears that the plaintiff herein resides in Boyle county and that under section 73, supra, the court had jurisdiction of the action. ’ ’
Appellee traction company admits that the principles of law stated by appellant in brief are correct but says they have no application to the facts of this casé where, as it insists, the plaintiff is not in fact the administrator of the decedent because not appointed by a county court having jurisdiction to name the .administrator of the intestate who resided in Fayette county and met his death there. The petition sets forth the fact that Walter was a resident of Fayette county and that the accident happened to him in Fayette county and he died therein. It also avers that appellant Harris was appointed administrator of the estate of Walter by the Bourbon county court.
By section 3894, Kentucky Statutes, it is provided that the county court of the county having jurisdiction to probate the will of a decedent, if he have one, shall have jurisdiction to grant administration of his estate; while section 4849, Kentucky Statutes, provides, “Wills shall be proved before, and admitted to record by, the county court of the county of the testator’s residence.” Construing these sections, this court, in the case .of Hall’s Admr. v. L. & N., 102 Ky. 480, held that the proceed
From the averments of the petition it is clear that the county court of Bourbon county had no jurisdiction to appoint an administrator of the estate of decedent, Walter, who was a resident of Fayette county and who died there intestate, there being no facts alleged showing jurisdiction in the Bourbon county court. By special demurrer the question was made, whether the plaintiff had capacity to maintain the action. If the Bourbon county court did not have jurisdiction to appoint Harris administrator of the estate of Walter, a resident of Fayette county, then he was not administrator of that estate, and if he were not administrator of that estate he had no interest in it and could not maintain an action to recover damages for the wrongful death of Walter. The trial court correctly ruled that Harris could not maintain the action. The special demurrer to the petition, which manifested all the facts showing that the Bourbon county court did not have jurisdiction to appoint Harris administrator of Walter was properly sustained. The incapacity of the appellant to maintain the action is clear.
Judgment affirmed.