McGinnis v. Missouri Car & Foundry Co.

• Decision Date: 18 March 1903
• Citation: 73 S.W. 586,174 Mo. 225
• Parties: McGINNIS, suing for DELIA CALLAHAN et al., v. MISSOURI CAR & FOUNDRY COMPANY, Appellant
• Court: Missouri Supreme Court

73 S.W. 586

174 Mo. 225

McGINNIS, suing for DELIA CALLAHAN et al., v. MISSOURI CAR & FOUNDRY COMPANY, Appellant

Supreme Court of Missouri, First Division

March 18, 1903

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

Reversed.

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.

OPINION

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 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; provided, that every such action shall be commenced within two years after the death of such person."

The statute of this State is as follows: "Sec. 548. 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."

Before the institution of this suit, Delia Callahan, the widow of the deceased, filed a petition asking the appointment of McGinnis under the section of the statute quoted; and the appointment was duly made.

There was a direct and sharp conflict in the evidence on the question of the cause of the accident and likewise as to whether the deceased received any such injuries as are alleged, or whether he died from heart disease. But as no point is made by the defendant, in this court, with respect to any question except the right of McGinnis to maintain this action, it is unnecessary to refer to any other branch of the case. There was a verdict and judgment for the plaintiff for one thousand dollars, and the defendant appealed.

The contention of the defendant is that no right of action in a case like this existed at common law; that the right is purely statutory; that the State of Illinois created the right and prescribed who should bring the suit, and how the proceeds should be distributed; that the statute of Missouri has no extraterritorial force and could not authorize a right created by the laws of Illinois to be enforced by any one else than the person who is authorized by the laws of Illinois to enforce it, and therefore McGinnis has no right to maintain this action.

Vawter v. Railroad, 84 Mo. 679, was an action for damages based upon the statute of Kansas, which is substantially like the Illinois statute, and which prescribed that the administrator should bring the action. The plaintiff was appointed administratrix in this State. It was held that she could not maintain the action; that the laws of this State expressly deny to an administrator a right to maintain such an action; that the Kansas administrator could not maintain such an action here, because he has no extraterritorial rights.

In Oates v. Railroad, 104 Mo. 514, the widow brought the action. The accident occurred in Kansas. It was held that the cause of action was created by the statute of Kansas, and that statute which created the right, prescribed who should enforce the right, to-wit, the personal representative, and that no other person could maintain the action.

In the Vawter case it was noted that the St. Louis Court of Appeals (Stoeckman, Admr., v. Railroad, 15 Mo.App. 503), the New York courts (Leonard, Admr., v. Navigation Co., 84 N.Y. 48), and the Supreme Court of the United States (Dennick v. Railroad, 103 U.S. 11), had held that a personal representative appointed in the State where the action was brought, could maintain an action based upon such a statute of another State -- the reasoning employed in those cases being that the foreign statute created the right and prescribed that the personal representative should bring the suit, but the right thus created was transitory, and the statute did not say the suit should be brought by an administrator appointed in the State that created the right, and therefore an administrator appointed in the State where the suit was brought filled the requirements of the statute. But it was held that those cases were not supported by the weight of authority, and the reasoning employed therein could not apply in this State because our law expressly prohibited an administrator from maintaining an action of that nature, and the laws of no foreign State could confer upon a Missouri administrator a power that is expressly denied him by the laws of this State. The matter was summed up by the court, in that case, as follows: "Most courts and text-writers of acknowledged authority hold that these actions, given by statute for causing death by neglect, default, or a wrongful act, can only be enforced by the courts of the jurisdiction where the wrong is suffered and the right of action is given. Other courts treat such actions as transitory, and enforce the statute law of the State where the injury was suffered, though the action be not one of any general recognized right. Others again entertain such actions when the laws of the two States upon the same subject are similar. If these statutes are administered outside of the jurisdiction where enacted, it must be done on principles of comity. Such principles are not to be narrowed, but they do not justify the courts in going to the extent to which we must go to sustain this action, i. e., to say to an administrator, you may sue in the county of the State of your appointment, under the law of another State, when denied the right to bring the same, or a like suit,...