Wells v. Davis

• Decision Date: 07 April 1924
• Docket Number: No. 2360.,2360.
• Citation: 303 Mo. 388,261 S.W. 58
• Parties: WELLS v. DAVIS, Federal Agent.
• Court: Missouri Supreme Court

261 S.W. 58

303 Mo. 388

WELLS v. DAVIS, Federal Agent.

No. 2360.

Supreme Court of Missouri, Division No. 1.

April 7, 1924.

Appeal from Circuit Court, Lawrence County; Chas. L. Henson, Judge.

Suit by Susie Wells, administratrix of the estate of Floyd Wells, deceased, against James C. Davis, Federal Agent. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F. Evans, of St. Louis, and Mann & Mann, of Springfield, for appellant.

Sizer & Gardner, of Monett, for respondent.

LINDSAY, C.

The plaintiff, Susie Wells, brought this suit as administratrix of the estate of her deceased son, Floyd Wells, to recover damages for his death, alleged to be due to the negligence of defendant. His death occurred on December 2, 1922, at Woolsey, Ark., while he was employed by the Director General of Railroads as locomotive fireman of an interstate freight train of the St. Louis-San Francisco Railway Company, running from Monett, Mo., to Ft. Smith, Ark. He was a single man, and had been contributing to the support of his mother, who is a widow. Both of them were residents of Arkansas at that time, and plaintiff is now. Her appointment as administratrix was made by the probate court of Crawford county, Ark. This suit was filed and tried in the circuit court of Lawrence county, Mo. There was a verdict for $15,000. The trial court remitted $5,000, and entered final judgment for plaintiff for $10,000.

I. The first question on appeal, duly raised by defendant, is directed at the right or legal capacity of the plaintiff to sue in the Missouri court, under her appointment as administratrix in Arkansas. It is conceded that the action is one under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), and it is therefore a suit by a foreign administratrix, upon a cause of action arising under the laws of the United States, and not under the laws of the state of Arkansas. Defendant insists that the plaintiff is not authorized to sue here by the terms of section 1163, R. S. 1919; that said section 1163 is exclusive of any such authority, and that there is nowhere else any authority under which she is entitled to maintain this suit in the courts of this state. Section 1163 took its present form in 1905 (Laws 1905, p. 95), as an amendment of section 548, R. S. 1899. It is as follows:

"Whenever any cause of action has accrued under or by virtue of the laws of any other state or territory, and the person or persons entitled to the benefit of such cause of action are not authorized by the laws of such state or territory to prosecute such action in his, her, or their own names, then, in every such case, such cause of action may be brought and prosecuted in any court of this state by the person or persons authorized under the laws of such state or territory to sue in such cases. Such suits may be brought and maintained by the executor, administrator, guardian, guardian ad litem, or any other person empowered by the laws of such state or territory to sue in a representative capacity."

The defendant insists that the word "state" as used in this section is to be construed as provided in section 7058, R. S. 1919, and that this excludes the words "United States." The pertinent portions are as follows:

"The construction of all statutes in this state shall be by the following additional rules, unless such construction be plainly repugnant to the intent of the Legislature, or of the context of the same statute: * * * Fifth, the word `state' applied to any of the United States, shall include the District of Columbia and the territories, and the words `United States' shall include the said district and territories."

Thereupon the contention is that section 1163 not only does not authorize plaintiff to sue, but, must be construed as an express exclusion of her right to sue as she has done.

At common law no action lay for damages caused by the death of a human being by the wrongful or negligent act of another, in favor of the heirs or personal representative of the deceased. This was uniformly held, and to that effect many Missouri decisions are cited in Gilkeson v. Railroad, 222 Mo. 185, 121 S. W. 138, 24 L. R. A. (N. S.) 844, 17 Ann. Cas. 763. The right of action was first given in England under the statute known as Lord Campbell's Act (9 and 10 Vict.). The provisions of this statute with the various modifications have been incorporated into the legislation of perhaps all of the states in this country. The first similar statute in Missouri, the beginning of our present Damage Act, was enacted in 1855. Statutes 1855, vol. 1, p. 647. The statutes of the various states differed somewhat in the designation of the beneficiaries, and of the person entitled to sue. In 1884, when the case of Vawter v. Mo. Pac. R. R. Co., 84 Mo. 379, 54 Am. Rep. 105, was decided, there was no statute of this state permitting an administrator to sue for the death of the intestate caused by the negligent act of another, and it was held that a statute of Kansas giving such right of action did not authorize an administratrix, appointed in Missouri, the right to sue in this state, for the death of her intestate husband who was killed in Kansas through the negligence of the defendant, although the statute of Kansas gave such right of action to the administratrix, and also permitted a foreign administrator to sue in that state for the death of his intestate, if the law of the state from which he got his appointment gave him like powers.

In 1801 (Laws 1891, p. 68) there was enacted the section which was the original of section 1163. The act of 1801 provided for the prosecution in this state of an action accruing under the laws of any other state, or territory, by a person to be appointed by the court wherein the suit was filed. This provision was held to be ineffective and void in McGinnis v. Missouri Car & Foundry Co., 174 Mo. 225, 73 S. W. 586, 97 Am. St. Rep. 553, in so far as it undertook to give the person so appointed power to prosecute an action, which under the law of the other state (Illinois) provided that such action should be prosecuted by the personal representative of the deceased person. It was said that the administrator of such person could not prosecute the action in this state until a statute authorizing him to maintain the action in this state was enacted,, but that was an utterance unnecessary to the decision of the case. After that came the amendment of 1905, giving the right to sue, to the person entitled to sue' under the laws of the state or territory wherein the cause of action accrued, and expressly giving the right to the foreign executor or administrator. In Lee v. Railway, 195 Mo. 400, 92 S. W. 614, an action also brought before the amendment, it was held that the widow might prosecute the action which accrued under the laws of Kansas; the law of that state at that time permitting her to do so. It was said in the opinion (loc. cit. 420 ) that the action could not be prosecuted in this state by a foreign administrator. But that question was not an issue in the case, because the plaintiff was entitled to sue as widow, by virtue of provisions of the Kansas law, and sued in that capacity. In Casey v. Hoover, 197 Mo. 62, 94 S. W. 982, the cause of action accrued in Oklahoma, and the action was prior to the amendment of 1905. The plaintiff undertook to sue in a threefold capacity—by next friend, as widow, and as administratrix, she having been so appointed such in Oklahoma. In brief, it was held that she could not sue by next friend, the Oklahoma statute giving the right of action first to the administrator, and then to the widow, she could not sue as widow, because, having qualified as administratrix, she had, under the Oklahoma law, precluded herself from suing as widow; and she could not sue as administratrix, because not authorized by our statute, as it then was, to sue as a foreign administratrix. Reference was made (loc. cit. 38 ) to the then recent amendment of 1005.

Later Congress enacted the law under which this action falls, applicable to employees of all common carriers by railroad, while the carrier, and its employee, as such, were engaged in interstate commerce, giving a right of action to the personal representative of the deceased employee, for the benefit of certain relatives designated in their order as beneficiaries. By the amendatory act of April 5, 1910, 36 Stat. 201 (U. S. Comp. St. §§ 8662, 8665) a change was made concerning the beneficiaries, and it was expressly provided that there could be but one recovery for the same injury. By the same amendment it was provided that in actions of this character the jurisdiction of the courts of the United States should be concurrent with the jurisdiction of the courts of the several states, and that no case arising under the act and brought in any state court of competent jurisdiction should be removed to any court of the United States. There is thus disclosed a legislative policy among the states, severally pursued, providing a right of action which did not exist at common law, and a further legislative policy, severally pursued but generally similar in character, providing methods of remedy not known to the common law, followed by the federal act based upon the interstate commerce provision.

The federal Employers' Liability Act in respect of the right granted, and in the cases falling within its provisions, is a law of uniform and universal application in all of the states. In respect of enforcement of its provisions, the remedy may be sought within either the federal or state jurisdiction, in accordance with the course of precedure therein respectively provided. The immediate issue in the case at bar has not heretofore been presented to this court for decision. The question is whether section 1163 governs, and is to be construed as authorizing the foreign representative of a right of action arising under the laws of any, among all the other states, to sue as...