73 S.W. 586 (Mo. 1903), McGinnis v. Missouri Car & Foundry Co.

Citation:73 S.W. 586, 174 Mo. 225
Opinion Judge:MARSHALL, J.
Party Name:McGINNIS, suing for DELIA CALLAHAN et al., v. MISSOURI CAR & FOUNDRY COMPANY, Appellant
Attorney:Seddon & Blair and Robert A. Holland, Jr., for appellant. Kinealy & Kinealy for respondent.
Case Date:March 18, 1903
Court:Supreme Court of Missouri

Page 586

73 S.W. 586 (Mo. 1903)

174 Mo. 225

McGINNIS, suing for DELIA CALLAHAN et al.,



Supreme Court of Missouri, First Division

March 18, 1903

Appeal from St. Louis City Circuit Court. -- Hon. Walter B. Douglas, Judge.


Seddon & Blair and Robert A. Holland, Jr., for appellant.

The court erred in overruling defendant's demurrer to plaintiff's original petition. Said petition showed upon its face that plaintiff had no right to maintain said action, no legal capacity to bring or maintain said action, no legal capacity to bring or maintain said suit, and that said petition stated no cause of action in favor of plaintiff. (a) Under the statute of Illinois, where the accident in question is alleged to have occurred, the suit had to be brought by the personal representatives of the deceased. (b) Section 548, Revised Statutes 1899, does not alter this situation, because in so far as it is extraterritorial it is utterly null and void. Stanley v. Railroad, 100 Mo. 35; Oates v. Railroad, 104 Mo. 514; Smith v. McCutchen, 38 Mo. 415; State v. Bunce, 65 Mo. 349; Connell v. Western Union, 108 Mo. 459; Story Conflict of Laws (8 Ed.), par. 7, p. 8; Usher v. Railroad, 126 Pa. 206; Wilson v. Tootle, 55 F. 211; State v. Railroad, 45 Md. 41; Pearsall v. Dwight, 2 Mass. 83; McCarthy v. Railroad, 18 Kan. 46; Tyler v. People, 8 Mich. 385.

Kinealy & Kinealy for respondent.

(1) A statute will not be declared void unless it appears beyond reasonable doubt that it conflicts with some specific provision of the State or Federal Constitution. State ex rel. v. Aloe, 152 Mo. 466; State ex rel. v. Pike Co., 144 Mo. 275; State v. Thompson, 144 Mo. 314; Hulett v. Railroad, 145 Mo. 35. (2) The Legislature had ample power to enact section 548, Revised Statutes 1899. State v. Wear, 145 Mo. 200; 1 Cooley's Blackstone, p. 102; 1 Bishop's N. Cr. Law, sec. 121, p. 68; State v. Gritzner, 134 Mo. 526; Oates v. Railroad, 104 Mo. 514; Dennick v. Railroad, 103 U.S. 11; Chicago v. Major, 18 Ill. 349.


[174 Mo. 227] MARSHALL, J.

This is an action for damages for personal injuries to Daniel Callahan, on December 27, 1898, at the town of Madison, Illinois, which resulted in his immediate death. The deceased was an employee of the defendant. The negligence charged is that the defendant allowed the electric wires, by which its building at Madison, Illinois, was lighted, to come in contact with the shift wires that the deceased had to catch hold of in the course of his duties, which gave the deceased an electric shock that caused his death. The answer is a general denial, and a special plea that McGinnis has no right to maintain this action. The injury and death occurred in the State of Illinois, and the right of action is predicated upon a law of that State (Pars. 1 and 2, ch. 70, vol. 2, Starr & Curtis's Annotated Statute of Ill., pp. 2155-2156), whilst the action is brought in this State under the Act of 1891 (now sec. 548, R. S. 1899), and as the case at bar hinges entirely upon a construction of the statutes, they are set out in full.

The Illinois statute is as follows:

Par. 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 felony."

Par. 2. "Every such action shall be brought by and in the names of the personal representatives 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 [174 Mo. 228] proportion provided by law in relation to the distribution of personal property left 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...

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