101 S.W. 641 (Mo. 1907), Johnson v. St. Joseph Terminal Railway Company

Citation:101 S.W. 641, 203 Mo. 381
Opinion Judge:GRAVES, J.
Party Name:VIOLA A. JOHNSON v. ST. JOSEPH TERMINAL RAILWAY COMPANY and ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellants
Attorney:Gardiner Lathrop, Thomas R. Morrow, Samuel W. Moore, James P. Gilmore and R. A. Brown for appellants. Mytton, Parkinson & Crow for respondent.
Judge Panel:GRAVES, J. Woodson, J., not sitting.
Case Date:April 11, 1907
Court:Supreme Court of Missouri
 
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Page 641

101 S.W. 641 (Mo. 1907)

203 Mo. 381

VIOLA A. JOHNSON

v.

ST. JOSEPH TERMINAL RAILWAY COMPANY and ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellants

Supreme Court of Missouri, First Division

April 11, 1907

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Affirmed.

Gardiner Lathrop, Thomas R. Morrow, Samuel W. Moore, James P. Gilmore and R. A. Brown for appellants.

(1) A sufficient petition and bond for removal having been filed in due time by the Atchison, Topeka & Santa Fe Railway Company, it was the duty of the court below to proceed no further than to make an order of removal, and all subsequent proceedings were coram non judice. Powers v. Railroad, 169 U.S. 92; Remington v. Railroad, 198 U.S. 95; Railroad v. Daughtry, 138 U.S. 298; Railroad v. Dunn, 122 U.S. 513; Carson v. Hyatt, 118 U.S. 279; Stone v. South Carolina, 117 U.S. 430; Berry v. Railroad, 64 Mo. 553; Stanley v. Railroad, 65 Mo. 508. (2) It being shown to the court that a transcript of the record in the State court has been properly filed in the United States Circuit Court, and that that court had assumed jurisdiction, the trial court should now be reversed, and all proceedings herein held coram non judice. City of Ashland v. Whitcomb, 129 Wis. 549; Railroad v. McMullin, 86 Wis. 597; State v. Frost, 113 Wis. 623; Robertson v. Kottrell, 69 N.H. 430; Stuart v. Bank, 57 Neb. 569; cases under point 1. (3) The deceased having been guilty of contributory negligence, and there being neither allegations nor proof of wantonness, willfulness or recklessness in the handling of the train in question, there can be no recovery in this case. Evans v. Railroad, 178 Mo. 598; Sharp v. Railroad, 161 Mo. 214; Tanner v. Railroad, 161 Mo. 497; Davies v. Railroad, 159 Mo. 1. (4) Plaintiff having utterly failed to prove herself the lawful wife of the deceased, she is not entitled to recover in this case. Williams v. Williams, 63 Wis. 58; Railroad v. Thorndike, 24 R. I. 105; Goodwin v. Goodwin, 113 Iowa 319; Barnes v. Barnes, 90 Iowa 232; Ellis v. Ellis, 58 Iowa 720; Gilman v. Sheets, 78 Iowa 499; Wilson v. Allen, 108 Ga. 275; Cartwright v. McGowen, 121 Ill. 388. (5) Even if the case were one which should have been submitted to a jury (which we deny), plaintiff's first instruction given by the court is manifestly erroneous, and the verdict and judgment cannot stand. Evans v. Railroad, 178 Mo. 508; Davies v. Railroad, 159 Mo. 1; Nelson v. Railroad, 68 Mo. 593; Isabel v. Railroad, 60 Mo. 475; Maher v. Railroad, 64 Mo. 267; Rine v. Railroad, 88 Mo. 392; Zimmerman v. Railroad, 71 Mo. 476; Kelly v. Railroad, 11 Mo.App. 1; Keefe v. Railroad, 92 Iowa 182; Kellny v. Railroad, 101 Mo. 67; Scoville v. Railroad, 81 Mo. 434; Harlan v. Railroad, 64 Mo. 22; Morgan v. Railroad, 159 Mo. 262. (6) Plaintiff's instruction 4 was erroneous, and the verdict and judgment cannot, therefore, stand. 5 Am. and Eng. Ency. Law (2 Ed.), 30, 39 and 40; Ham v. Barrett, 28 Mo. 388; Moberly v. Railroad, 98 Mo. 183; Rapp v. Railroad, 106 Mo. 423; Meyers v. Kansas City, 108 Mo. 480; Erhart v. Dietrich, 118 Mo. 418; Bluedorn v. Railroad, 121 Mo. 258; Weller v. Railroad, 120 Mo. 635; Schepers v. Railroad, 126 Mo. 665; Payne v. Railroad, 129 Mo. 405; Morton v. Heidorn, 135 Mo. 608; Lee v. Knapp & Co., 55 Mo.App. 390; Sackberger v. Grand Lodge, 73 Mo.App. 38; Haycraft v. Grigsby, 98 Mo.App. 354; Winter v. Supreme Lodge, 96 Mo.App. 1; Oliver v. Love, 104 Mo.App. 73; Schmisser v. Beatrie, 147 Ill. 210; Murray v. Murray, 6 Ore. 18.

Mytton, Parkinson & Crow for respondent.

(1) The court did not err in denying the Santa Fe Company's petition to remove to the Federal Court, for the reason that the Terminal Company was liable to plaintiff for the death of her husband if the Santa Fe Company had been guilty of negligence which caused his death. Especially is this true where lessor retains possession and control of the road as here. R. S. 1899, sec. 1060; Markey v. Railroad, 185 Mo. 359; Smith v. Railroad, 61 Mo. 17; Railroad v. Cranee, 113 U.S. 424; Heron v. Railroad, etc., 68 Minn. 542. Even the Santa Fe Company does not deny its liability if it was guilty of negligence, but in its petition for removal expressly asserts its liability if it was guilty of negligence, and plaintiff having a cause of action against the Terminal Company as well as the Santa Fe Company, had the lawful right to hold defendants jointly liable or sue either. R. S. 1899, sec. 545; Railroad v. Sloan, 125 Ill. 72; Railroad v. Doan, 195 Ill. 168; Logan v. Railroad, 116 N.C. 940. Where the statute of the State in which the cause of action is pending expressly authorizes the joining of a non-resident and a resident, and makes both persons liable for the injury, the cause is not removable. Lanning v. Railroad, 94 S.W. 491; Railroad v. Thompson, 26 Mo. 161; Railroad v. Bohan, 26 S.Ct. 166. (2) This case involves the principle of law repeatedly and uniformly announced by this court commonly known as the Humanitarian or Last Chance Doctrine, namely, "Where one unconscious of a peril has negligently placed himself in a position of danger so far away from that danger that his death may be averted by the use of ordinary care by those who see him and who control the dangerous instrumentality, his death is actionable." We desire to call the court's attention to recent expressions applicable to the facts in this case: Hinzman v. Railroad, 182 Mo. 611; Eppstein v. Railroad, 94 S.W. 967; Baxter v. Railroad, 95 S.W. 856. (3) The deceased was entitled to the presumption under the facts in this case that he had obtained a divorce from his first wife, her actions in living with a man as his wife and having two children born while occupying that relation, holding herself out to the world as the wife of Powell and the deceased contracting a marriage with plaintiff openly and in the most public manner possible and in a community where all the facts were known. Certain the jury was authorized to do as it did, refuse to believe the testimony of Cora. Her life and conduct were such as to cause the jury to look upon her testimony with suspicion and especially was this true after admitting that she had received one hundred dollars from defendant. It is of course the common belief that a woman who will come into court and bastardize her offspring is unworthy of belief on any question, especially so, after she by her conduct has asserted their legitimacy for more than seven years. Klein v. Laudman, 29 Mo. 259; Johnson v. Johnson, 114 Ill. 611; Bolden v. McIntyre, 119 Ind. 574; Coalrun Coal Co. v. Jones, 127 Ill. 379; 19 Am. and Eng. Ency. Law (2 Ed.), 1208. (4) Plaintiff's instruction 4 declared the law on the question of the validity of the marriage. Bolden v. McIntyre, 119 Ind. 574. There is no instruction on behalf of plaintiff on contributory negligence, because the issue is not in the case and was not before the court for adjudication either under the pleadings or the evidence. Johnson v. Railroad, 173 Mo. 307; Squires v. Kansas City, 100 Mo.App. 628; Morton v. Kramer, 180 Mo. 536; Chambers v. Chester, 172 Mo. 461; Perrette v. Kansas City, 162 Mo. 238; Grace v. Railroad, 156 Mo. 295.

GRAVES, J. Woodson, J., not sitting.

OPINION

[203 Mo. 387] GRAVES, J.

Plaintiff is the alleged widow of John C. B. Johnson, deceased. Petition was filed within the time allowed by statute, but as originally filed asked for but $ 2,000 damages. Later it was amended so as to make the ad damnum clause read $ 5,000 instead of $ 2,000. The action is therefore the statutory action under section 2864, Revised Statutes 1899, to recover the penal sum of $ 5,000, due the wife for the negligent killing of her husband.

Defendant St. Joseph Terminal Railroad Company is a Missouri corporation, and defendant Atchison, [203 Mo. 388] Topeka & Santa Fe Railway Company is a Kansas corporation. Johnson was a section man in the employ of the Terminal Company. He was run over and killed by a Santa Fe train within the limits of the Terminal Company's switch yards in the city of St. Joseph. Defendant Santa Fe Company filed its application and bond for the removal of the cause to the U.S. Circuit Court, at St. Joseph, Mo. This application was, by the trial court, overruled. It might be well to state here that plaintiff had on February 19, 1903, brought a previous suit, which had been transferred to the Federal court, but this suit was dismissed by plaintiff in the Federal court at the September term, 1903, and the present suit brought December 14, 1903. The failure of the State court to transfer the present suit to the Federal court is urged as error. The application for removal was in due form and alleged that the cause of action, so far as the Santa Fe Company was concerned, was a separable cause of action from the one alleged against the Terminal Company, and that the Terminal Company was fraudulently joined in an attempt to deprive the Santa Fe Company of its right to transfer said cause to the Federal court.

The allegations of the petition in so far as are necessary for the opinion, are as follows:

"Plaintiff states that on or about the 18th day of December, 1902, a train of cars attached to a locomotive engine, the property of the Atchison, Topeka & Santa Fe Railway Company, passed along over the railroad tracks belonging to the Atchison, Topeka & Santa Fe Railway Company to the southern

Page 642

limits of St. Joseph and passed from said railroad tracks belonging to said Atchison, Topeka & Santa Fe Railway Company to the tracks of the defendant, St. Joseph Terminal Railroad Company.

"Plaintiff further states that by a traffic arrangement between said defendant companies, immediately [203 Mo. 389] upon said locomotive engine and train of cars entering upon the tracks and roadway of the said Terminal...

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