Cottengim's Adm'r v. Adams' Adm'x
255 S.W.2d 637
Feb. 27, 1953.
36 A.L.R.2d 1142
ACTION: Reversed.

Action for wrongful death. The Circuit Court, Fayette County, dismissed for lack of jurisdiction over person of defendant and over subject matter of action and plaintiff appealed. The Court of Appeals, Sims, C. J., held that a wrongful death action, arising from an airplane crash, was local and could be brought in county where the crash occurred.

SIMS, Chief Justice.
The sole question for determination on this appeal is whether an action for wrongful death is transitory or local, and whether � 78 or � 74 of the Civil Code of Practice governs the venue thereof. The Fayette Circuit Court held the action was transitory, sustained appellee's motion to quash the service, as well as her special demurrer, and dismissed the petition for lack of jurisdiction over the person of defendant and over the subject matter of the action.

There is no contrariety in the facts. On January 1, 1951, Jackie Ray Cottengim, appellant's decedent, and Ernest B. Adams, appellee's decedent, were both killed in Fayette County in a crash of an airplane owned and operated by Adams in which Cottengim was riding as a guest. Both men were residents of Clark County, and as each died intestate, the Clark County Court appointed appellant administrator of the estate of Cottengim, and appellee administratrix of the estate of Adams. Cottingim's administrator sued Adams' administratrix in the Fayette Circuit Court for $51,000 damages, the petition averring the crash was caused by the negligence of Adams.

Service of the summons was had in Clark County on Adams' administratrix. She filed motion to quash, also a special demurrer challenging the jurisdiction of the court, both of which were sustained on the ground that the action was transitory and under � 78 of the Civil Code of Practice must be brought in the county in which the defendant resides or is summoned. Appellant insists that the action is local and under � 74 of the Civil Code of Practice may be brought either in the county where the decedent was killed or where the defendant resides; and as the crash occurred in Fayette County, he properly brought his action in the Fayette Circuit Court.

Counsel for both appellant and appellee say this question has never been directly before this court, and we do not find in our limited research where it has. It is argued by appellant that there is no difference between a negligent act which causes death and one which results only in injury to the person, except in degree.

Where a person is killed by the wrongful act of another, the personal representative of the deceased may elect whether to sue to recover damages for the wrongful death of his decedent or to sue to recover damages for the pain and suffering of his decedent, but he cannot sue to recover damages for both wrongful death and for pain and suffering. There could be no possible reason for the Legislature to make a distinction in the venue of the two actions both of which grow out of the same state of facts which affect directly the same victim. We think the Legislature in � 74 in making the venue local in a personal injury action and limiting it to 'the county in which the defendant resides, or in which the injury is done' certainly intended to include death as well as personal injury in the phrase 'in which the injury is done.'

We are fortified in this line of reasoning by both the constitution and the statutes of this State. Section 54 of our Constitution reads: 'The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.' Albeit K.S. � 2516 (now KRS 413.140) makes no reference to an action for wrongful death and provides 'An action for an injury to the person of the plaintiff' must be commenced within one year after the cause of action accrued, this court has for years construed this section applicable to actions for wrongful death.

Any other construction than the one here given � 74 would bring about an anomalous situation and fix the venue of an action where only personal injury resulted from another's negligence different from the venue of one where death resulted therefrom, although both arose from the same facts.

The judgment is reversed.

255 S.W.2d 637, 36 A.L.R.2d 1142

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