Stoeckman v. Terre Haute & Indianapolis R.R. Co.

• Decision Date: 27 May 1884
• Citation: 15 Mo.App. 503
• Parties: HARVEY STOECKMAN, ADMINISTRATOR, Appellant, v. TERRE HAUTE AND INDIANAPOLIS RAILROAD COMPANY, Respondent.
• Court: Missouri Court of Appeals

15 Mo.App. 503

HARVEY STOECKMAN, ADMINISTRATOR, Appellant,

v.TERRE HAUTE AND INDIANAPOLIS RAILROAD COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

May 27, 1884.

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Affirmed.

M. F. TAYLOR, for the appellant.

PATTISON & CRANE, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This was an action brought by an administrator appointed in Missouri for damages resulting in the death of his intestate, which took place in the state of Illinois.

At the close of the testimony, the court instructed the jury that the plaintiff was not entitled to recover. The plaintiff took a bill of exceptions which states that this instruction was given by the court with the accompanying announcement to counsel, that the action of the court was based upon the fact that, as the statute of Illinois gave a right of recovery to the personal representative, and the Missouri statute of similar import gave a right of recovery to the next of kin of the deceased suing in person, the Illinois statute could not be enforced in the courts of Missouri. This bill of exceptions also states that the plaintiff offered evidence tending to support all the allegations of his petition.

The respondent, for the purpose of bringing under review the merits of the case, has taken a bill of exceptions presenting the evidence and ending with the following recital: “And, as the court is of opinion that the above evidence tends to prove the facts alleged by plaintiff in his petition, and has signed plaintiff's bill of exceptions stating that there was evidence to prove the allegations of said petition, defendant excepts to the opinion of the court that the above evidence tends to prove the allegations of said petition, and tenders this, its bill of exceptions, and asks that the same may be signed and sealed as such, which is accordingly done.”

I. The appellant makes the preliminary question that this bill of exceptions can not be considered at all, and his contention is that, the decision of the court having been in the respondent's favor, the court here can not inquire into, or be concerned with, the reasons which influenced that decision; and that it is absurd and incongruous for a party in whose favor the whole case has been decided, and who is the respondent in an appeal from such decision, to present himself in the appellate court as an exceptor. This contention, it must be conceded, conforms, in strict logic, to the principles of appellate procedure in actions at law; but, like other rules which are strictly logical, it has been found necessary, in order to prevent the multiplying of appeals and new trials, and to bring the whole case under review before the appellate court, that it should give way to rules of practical convenience. Such rules were prescribed a few years since by the supreme court, with reference to the subject under consideration, and were adopted by this court soon after its organization. These rules are as follows:--

1. “In actions at law it shall not be necessary, for the purpose of reviewing in this court the action of any circuit court, or any other court having by statute jurisdiction of civil cases, in giving or refusing instructions, that the whole of the testimony given or excluded at the trial in the court of first instance should be embodied in the bill of exceptions; but it shall be sufficient, for the purposes of such review, that the bill of exceptions should state that ‘evidence tending to prove’ a particular fact or issue was given, and that an exception was saved to the giving or refusing of instructions founded on it.

2. If the opposite party shall contend that there was no evidence tending to prove a fact or issue, and the court of first instance shall be of opinion that there was such evidence, it shall be the duty of the court to allow the bill of exceptions in the form stated in the last preceding rule, and then the other party shall be at liberty to set out in a bill of exceptions, to be prepared by him, the whole of the testimony supposed to be applicable to such fact or issue, and to except to the opinion of the court that the same tends to prove such fact or issue.”

The case before us seems to fall within the purview of the second rule above quoted; and we therefore hold that the respondent's bill of exceptions is to be considered.

II. The next question is whether the plaintiff, being an administrator appointed in the state of Missouri, is entitled to prosecute this action under the statute of the state of Illinois, for damages for the death of his intestate, which took place in that state, in which state the defendant owned and operated a railroad. The right of recovery is predicated upon a statute of Illinois which the plaintiff has pleaded and proved, as follows:--

“Be it enacted by the people of Illinois, represented in the general assembly:--

SECTION 1. Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured; and although the death shall have been caused under such circumstances as amount in law to a felony.

SECT. 2. Every such action shall be brought by and in the name of the personal representative of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person, not exceeding the sum of $5,000; provided, that every such action shall be commenced within two years after the death of such person.”

At common law, no action lay for injuries resulting in the death of a human being. Such an action was first given in England by a statute known as Lord Campbell's act. 9 & 10 Vict., ch. 93. This statute has been, with various modifications, incorporated into the legislation, it is believed, of all the American states. Under these statutes the question has frequently arisen in the American courts, whether, in the case where the death of a human being has happened in one state, under such circumstances as would give a civil action therefor, under the statute of that state, such action can be maintained in the courts of another state; in other words, whether any extra-territorial force can be given to statutes of this kind. A majority of these courts seem to have reached the conclusion that the remedy under such a statute is confined to the courts of the state in which the injury took place.-- Whitford v. Panama R. Co., 23 N. Y. 465, affirming s. c. 3 Bosw. 67; Vandeventer v. New York, etc., R. Co., 27 Barb. 244; Beach v. Bay State, etc., Co., 10 Abb. Pr. 71; s. c. 30 Barb. 433, reversing 27 Barb. 248; 6 Abb. Pr. 415; Vanderworken v. New York, etc., R. Co., 6 Abb. Pr. 239; Campbell v. Rogers, 2 Handy, 110; Hover v. Pennsylvania R. Co., 25 Ohio St. 667; Nashville, etc., R. Co. v. Eakin, 6 Coldw. 582; Woodward v. Michigan Southern R. Co., 10 Ohio St. 121; Richardson v. New York Central R. Co., 98 Mass. 85; McCarthy v. Chicago, etc., R. Co., 18 Kan. 46. The contrary rule has been declared in some jurisdictions, notably in the supreme court of the United States, and in the court of appeals of New York, in late cases. Dennich v. Railroad Co., 103 U. S. 11; Leonard v. Columbia Steam Nav. Co., 84 N. Y. 48. In the former of these last two cases, Mr. Justice Miller, in delivering the unanimous opinion of the supreme court of the United States, answers, and conclusively, we think, every position taken by the learned counsel for the defendant in support of the ruling of the circuit court in the case before us. The question there was, whether a right of action for damages resulting in death, given by the statute of New Jersey, in which state the injury took place, could be maintained in a court in New York by an administrator appointed in New York. The New Jersey statute is a precise transcript of the Illinois statute under which the present action is brought. It was held that such an action could be maintained. In the case last cited, the New York court of appeals, reviewing, distinguishing, and perhaps to some extent, overruling a number of prior decisions of that and other courts of the same state, upon the same question, held that such an action can be maintained in New York, where the statute of the sister state sued upon is of the same general character as the statute of New York upon the same subject. And the court are careful to say that it is not necessary that the foreign statute should resemble the New York statute in all its details. It is sufficient that the policy of the legislation of two states upon the subject of the right of action for such an injury is the same.

These very recent decisions of two of the most authoritative courts of the union indicate the tendency of recent judicial sentiment on the question. Not only this, but the well reasoned opinions delivered in each of these cases point out the fallacy of the grounds on which courts which have reached the contrary conclusion have proceeded.

It has been supposed that these statutes ought to have no extra-territorial force, because they create rights of action which did not exist at common law. But this reasoning proves quite too much, because authorities are abundant to show that the courts are...