Oates v. Union Pac. Ry. Co.
| Decision Date | 25 May 1891 |
| Parties | Oates, Appellant, v. The Union Pacific Railway Company |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Affirmed.
Sherry & Hughes for appellant.
The court erred in sustaining defendant's demurrer to plaintiff's petition, and the appellant cites the following authorities, to-wit: Dennick v. Railroad, 103 U.S. 11; Knight v. Railroad, 26 Am. & Eng. R. R Cases, 485; Leonard v. Nav. Co., 84 N.Y. 48; Boyce v. Railroad, 18 N.W. 673; Morris v Railroad, 23 N.W. 143; Railroad v. Lewis, 40 N.W. 401; Stoeckman v. Railroad, 15 Mo.App. 503; Cooley on Torts [2 Ed.] 266; Debevoise v. Railroad, 98 N.Y. 379; Railroad v. Doyle, 60 Miss. 977; Burns v. Railroad, 113 Ind. 169; Herrick v Railroad, 31 Minn. 11; Scott v. Lord Seymour, 1 Hurl & C. 219; Bruce v. Railroad, 83 Ky. 174.
John W. Beebe for respondent.
(1) The court did not err in sustaining the demurrer. First. The petition on its face shows that the plaintiff had no cause of action, and especially so, as the only person having a cause of action at the time this suit was instituted was the personal representative, i. e., executor or administrator, of the deceased, and this is disclosed by the petition itself. 3 Wood, Railroad Law, sec. 413; City of Atchison v. Twine, 9 Kan. 350; Limkiller v. Railroad, 33 Kan. 83; Barker v. Railroad, 91 Mo. 86; Vawter v. Railroad, 84 Mo. 679; Shearman & Redfield on Negligence [4 Ed.] sec. 133. Second. The cause of action having arisen under the laws of Kansas could not, under any circumstances, be enforced in this state, as the statutes of Kansas and Missouri on the subject are essentially different. McCarthy v. Railroad, 18 Kan. 46; Railroad v. Lacy, 43 Ga. 461; Willis v. Railroad, 61 Tex. 432; Ash v. Railroad, 19 A. 643; Davis v. Railroad, 143 Mass. 301; Vawter v. Railroad, 84 Mo. 679; Rorer on Inter-State Law, secs. 158-163.
The petition discloses these facts: The defendant, the Union Pacific Railway Company, owns and operates a railroad in the state of Kansas, which extends into this state. The defendant's servants carelessly and negligently ran a train of cars upon J. M. Oates at a point in the state of Kansas, inflicting injuries upon him from which he died the next day, namely, June 9, 1885. Oates was not in the employ of the defendant at the time he was injured, but he was in the employ of another railroad company. At and prior to his death he resided in this state, and he left surviving a widow and three minor children. Plaintiff, who is the widow of deceased, brought this suit in the courts of this state for the death of her husband, laying her damages at the sum of $ 10,000, and founding her cause of action upon the statute laws of the state of Kansas, which are set out in the petition.
The circuit court sustained a demurrer to the petition, and the sole question before us is, whether the plaintiff can maintain this suit in the courts of this state.
As the plaintiff founds her cause of action upon the statute law of the state of Kansas, and she is also forced to rely somewhat upon the statute laws of this state, we shall first set out, in words or substance, the statute laws of the two states.
The statute of the state of Kansas, set out in the petition, is in these words: It is conceded that the words, "personal representatives," mean the executor or administrator, and that under the rulings of the supreme court of Kansas the suit cannot be maintained by the widow and children, or by either, but must be brought by the executor or administrator, he to make distribution to the widow and children, or next of kin.
Had Oates received the injuries causing his death in this state, then, under the circumstances set out in the petition, the cause of action would come under the second section of our damage act, which fixes the amount of the forfeiture or damage at the sum of $ 5,000 to "be sued for and recovered, first, by the husband or wife of deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, by the minor child or children of the deceased; or, third, if such deceased be a minor and unmarried, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment; or, if either of them be dead, then by the survivor."
We have pressed upon our attention in this case, as we did in the case of Vawter v. Railroad, 84 Mo. 679, a class of cases to the general effect that a right of action created by the statute of one state may be prosecuted in another state where the two states have statutes relating to the same subject which are alike or similar in substance and effect. We were of the opinion that these cases then cited did not rule that case, and we are of the opinion they have little or no application to the case in hand. In that case the plaintiff was the administrator of the estate of the person who died from injuries received in the state of Kansas. The plaintiff received her appointment as administratrix in this state, and then commenced suit in this state, founding her cause of action upon the before-quoted statute of the state of Kansas. Having been appointed administratrix in this state, she, of course, possessed the powers and the powers only conferred upon her by the laws of this state. The laws of this state gave her no authority to prosecute such a suit. They not only gave her no such authority, but they denied an executor or administrator the right to prosecute an action on the case for injuries to the person of the testator or intestate. R. S. 1879, secs. 96, 97. We,...
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