Wilson v. Tootle

• Decision Date: 17 April 1893
• Citation: 55 F. 211
• Parties: WILSON v. TOOTLE.
• Court: U.S. District Court — Western District of Missouri

55 F. 211

WILSON v. TOOTLE.

United States Circuit Court, W.D. Missouri, Saint Joseph Division.

April 17, 1893

Statement by PHILIPS, District Judge:

This is on demurrer to the petition. The petition, in substance alleges that on the 16th day of August, 1889, William J Kelly died, intestate, in the state of Minnesota; that his death resulted from the wrongful act and negligence of the defendant, committed in said state; that thereafter, in September, 1889, the plaintiff was duly appointed administrator of the estate of said decedent by the probate court of the domicile of the deceased in said state, and that said administrator duly qualified, etc.; and that the plaintiff is a resident of said state, and the defendant is a resident of the state of Missouri. This suit is to recover damages in the sum of $10,000 for the death of said Kelly, to the use of the father and mother of said deceased, who are his sole heirs. The petition also states that plaintiff had been appointed by the clerk of the circuit court of the United States for the St. Joseph division of the western district of Missouri, in vacation, to institute and prosecute this action; that said appointment was so made pursuant to an act of the legislature of the state of Missouri, approved April 20, 1891. To this petition the defendant demurs on the ground, principally, that the plaintiff cannot maintain this action in this jurisdiction.

Hall &amp Pile, for plaintiff.

H. K White, for defendant.

PHILIPS District Judge, (after stating the facts.)

In the case of Vawter v. Railway Co., 84 Mo. 679, the supreme court of this state held that an administrator appointed under the laws of the state could not maintain an action in the state against a defendant railroad company for damages resulting from the death of the intestate, occurring in the state of Kansas, through the imputed wrongful act and negligence of the company, although a cause of action therefor was given by the statutes of that state fo the administrator of the estate. This ruling was predicated mainly on the proposition that said action was given wholly by the statute of Kansas, and such statute has no extraterritorial force, and because of the fact that under the statutes of this state the administrator cannot maintain an action for personal injury to the intestate. In Oates v. Railway Co., 104 Mo. 514, 16 S.W. 487, the intestate at the time of his death was a citizen of the state of Missouri, and died in the state of Kansas in consequence of injuries inflicted upon him there through the imputed wrong and negligence of servants of the defendant company. The suit was brought in the state court of Missouri by the surviving widow. The doctrine of the Vawter Case was reaffirmed. Although, by the statute of the state of Missouri, a right of action for the death, had the injury, occurred here, was given to such widow, yet, as the right of action where the injury occurred was given alone by the statute of Kansas to the legal representative, the remedy, it was held, was imported into the forum of adjudication along with the right. Therefore, as the widow could not maintain the suit in Kansas, neither could she sue in Missouri. The decision in the Vawter Case was the occasion of the enactment by the Missouri legislature of the following statute, approved April 20, 1891:

'Section 1. Whenever a cause of action has accrued under or by virtue of the laws of any other state or territory, such cause of action may be brought in any of the courts of this state by the person or persons entitled to the proceeds of such cause of action: provided, such person or persons shall be authorized to bring such action by the laws of the state or territory where the cause of action accrued.

'Sec. 2. 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 in any of the courts of this state, by a person to be appointed for that purpose by the court in which such cause of action is sought to be instituted, or the clerk thereof in vacation, and such person so appointed may institute such action, and prosecute the same, for the benefit of the person or persons entitled to the proceeds thereof under the laws of the state or territory wherein the cause of action arose.

'Sec. 3. The proceeds of any action brought under section number two of this act shall be distributed by the person bringing such suit, and paid to the person or persons entitled thereto, according to their respective interests therein, under the laws of the state or territory wherein the cause of action arose.'

We do not see very clearly how this statute can be relied upon to maintain this action, for by the first section the right of action for such death occurring without the state is given to 'the person or persons entitled to the proceeds of such cause of action, provided such person or persons shall be authorized to bring such action by the laws of the state or territory where the cause of action accrued. ' As by the statute of Minnesota the cause of action in question is given to the legal representative of the deceased, and by the statute of Missouri is given to the parent or parents, or wife, or children, as the case may be, it is apparent that the person authorized to bring such action by the laws of Minnesota, where the cause of action accrued, is not the party entitled to the proceeds of such cause of action. Exactly why the legislature of the state, while passing a remedial act, should have thus restricted its terms is not apparent. It must suffice, however, for the purposes of this case, that such is the statute. While section 2 of the act authorizes the appointment of a person in this state by the clerk or the court to prosecute the action, where the person or persons entitled to the benefit of such cause of action are not authorized by the laws of the state where the injury occurred to prosecute such action, yet I very much question the power of the legislature of Missouri to authorize any one else to maintain such action than the person named by the enabling act of Minnesota. It is true that the person designated in this case to prosecute the action is the legal representative of the deceased in Minnesota, and the plaintiff is entitled to any vantage ground, if any, on account of this coincidence. The right of action given being in contravention of the common law, and being dependent alone upon the statute creating it, the right must be taken with the limitations placed upon the remedy.

If I am correct in this view, we are brought to face the question whether or not the administrator appointed in Minnesota can maintain this action without the aid of the foregoing enabling act of the legislature of Missouri. Neither of the Missouri cases above cited presents the precise question whether the legal representative appointed under the laws of the state where the injury occurred can maintain such action in this state. The rule which forbids a nonresident administrator or executor from going into another state to recover property of the estate is based largely upon the proposition that letters testamentary or of administration have no force or effect beyond the territorial limits of the state by whose authority they are granted; that the property of the deceased is subject to the rules of devolution, succession, and administration under the statute laws, where situated; and that the property of the decedent within the state, being subject to the claims of creditors, will not be permitted to be withdrawn from the local jurisdiction until such claims are satisfied. This is what a recent author terms 'the necessity of the rule.' 1 Woerner, Adm'n, p. 358. On principle, I cannot perceive why the maxim should not apply here, as elsewhere, that rules cease with the reason that gave them birth. By the statute of Minnesota (1878, p. 825, Sec. 2) the cause of action in such case is given to 'the personal representative of the deceased,' and 'the amount recovered is to be for the exclusive benefit of the widow and next of kin, to be distributed to them in the same proportions as the personal property of the deceased person.'

Story in his Equity of Jurisprudence, (page 531,) defines assets as follows 'In an accurate and legal sense, all the personal property of the deceased which is of a salable nature, and may be converted into ready money, is deemed 'assets. But the word is not confined to such property, for all other property of the deceased which is chargeable with his debts or legacies, and is applicable to the...