Vawter v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1884
• Citation: 84 Mo. 679
• Parties: VAWTER, Administratrix, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

84 Mo. 679

VAWTER, Administratrix,

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Moberly Court of Common Pleas.--HON. G. H. BURCKHARTT, Judge.

REVERSED.

H. S. Priest with T. J. Portis for appellant.

(1) The objection of appellant to the introduction of any evidence under the petition should have been sustained. The petition does not state facts sufficient to render the appellant liable for the following reasons, to-wit: ( a) Because the courts of this state will not enforce the right of action which the plaintiff claims accrued under the statute of Kansas. Willis v. Ry. Co., 3 Tex. 282; Richardson v. R. R., 98 Mass. 85; Cooley on Torts, 471; Woodward v. R. R., 10 Ohio St. 121; Wharton on Conflict of Laws, sec. 711; McCarthy v. Ry., 18 Kas. 46; Proctor v. Ry., 64 Mo. 112; Patton v. Ry.,96 Pa. St. 169; Anderson v. Ry., 37 Wis. 321; Whitford v. Ry., 23 N. Y. 465; Armstrong v. Beadle, 5 Sawyer 484; Needham v. R. R., 38 Vt. 294; State, etc.,v. Ry., 45 Md. 41; Bank v. Price, 35 Md. 487; Hunt v. Town, etc., 9 Vt. 417; Rorer on Inter-State Law, pp. 144, 145; State, etc., v. John, 5 Ohio Rep. 217; R. R. Co. v. Cragin, 71 Ill. 177; Derrickson v. Smith, 27 N. J. L. 166; Halsey v. McLean, 12 Allen 438; Drinkwater v. Ry., 18 Me. 37; Gorman v. Pacific R. R., 26 Mo. 441; Judge of Probate v. Hibbard, 44 Vt. 597; s. c. 8 Am. Rep. 396; 2 Rorer on Railroads, chap. LIV, sec. 3, p. 1149; Brigham v. Claflin, 31 Wis. 607; Betty v. Ry. Co., 37 Wis. 323. ( b) According to the allegations of the petition the cause of the death of respondent's intestate was the negligence of his fellow-employes. The law of the state of Kansas, which makes the employer liable to a servant for the negligence of a fellow-servant, is only a rule of decision for the courts of that state, and will not be enforced by the courts of this state, especially as it is contrary to the settled law of this state. Story Conflict of Laws, sec. 23; Anderson v. R. R. Co., supra; Pickering v. Fisk, 6 Vt. 102; Rorer Inter-State Law, supra; Wharton on Conflict of Laws, secs. 4, 104, 478 and 490, and notes; Vega v. Vienna, 1 Barn. & Ad. 284; Scoville v. Canfield, 14 Johns. 338; Pearsoll v. Dwight, 2 Mass. 84; Harrison v. Sterry, 5 Cranch, 299; McGowan v. R. R. Co., 61 Mo. 528; Blessing v. R. R. Co., 77 Mo. 410. ( c) Plaintiff was appointed and qualified as administratrix of the intestate's estate under the laws of this state, and therefore had only such powers and rights as were given or conferred by the law of this state; under which there was no authority to maintain this action. Such a right of action is given to her as administratrix by the statutes of Kansas alone. Taylor, Adm'r, v. R. R. Co., 78 Ky. 348; Woodward v. R. R., 10 Ohio St. 121; Richardson v. R. R. Co., 98 Mass. 92; Mackay v. R. R., 4 Fed. Rep. 617. (2) In addition to the foregoing reasons, the demurrer to the evidence at the close of plaintiff's case and at the conclusion of the whole case should have been given upon the ground of the intestate's contributory negligence O'Neill v. R. R. Co., 45 Iowa 546; Wright v. R. R. Co., 25 N. Y. 568; R. R. Co. v. McDade, 58 Ga. 73; s. c. 18 Am. Ry. Rep. 183; Wolsey v. R. R. Co., 33 Ohio St. 227; R. R. Co. v. Patterson, 93 Ill. 195; Thomas v. R. R., 51 Miss. 637; Wood v. R. R., 70 N. Y. 195; Lyon v. R. R., 31 Mich. 429; Rose v. R. R., 9 Am. Ry. R., 515; s. c. 58 N. Y. 217. (3) Respondent's second instruction is directly conflicting with instruction number two given for appellant and number three given by the court of its own motion. The rule given the jury in plaintiff's first and third instructions by which to measure or estimate the damages in addition to being incorrect as a rule, is also misleading. Edmunds v. Ry. Co., 3 Mo. App. 603; R. R. Co. v. Brown, 26 Kas. 443; Rose v. R. R. Co., 39 Iowa 246. The verdict is excessive. Brown's case, supra; Rose's case, supra. (4) The court erred in admitting incompetent evidence in behalf of respondent and rejecting proper evidence offered by appellant. (5) The court erred in giving instructions asked by respondent and in refusing instructions asked by appellant; and in giving instructions of its own motion.

James Ellison and W. C. Ellison for respondent.

(1) This action is brought in Missouri under the statutes of Kansas for killing plaintiff's intestate and husband in a collison happening in Kansas. That such an action is maintainable is established by the following authorities. Dennick v. Ry., 103 U. S. 11; Selma, Rome, etc., Ry. v. Lacy, 49 Ga. 106; W. & A. Ry. Co. v. Strong, 52 Ga. 461; Atchison, etc., v. Moore, 29 Kan. 632; Boyd v. Clark, 8 Fed. Rep. 849; Hyde v. Ry. Co., 61 Ia. 441; Hannibal & St. Jo. Ry., 31 Kas. 586: Leonard v. Columbia, etc., 84 N. Y. 48; Herrick v. Ry., 31 Minn. 11; Boyce v. Ry., 18 N. W. Rep. 673; Great Western Ry. v. Miller, 19 Mich. 305; Nashville, etc., v. Sprayberry, 9 Heisk. 852; 8 Bax. 341; Shedd v. Moran, 10 Ill. App. 618; Delcharge v. Hietkemper, 20 N. W. Rep. 385; Chicago v. Ry., 60 Miss. 977; Ry. Co. v. Wallace, 50 Miss. 244. The following authorities establish the same proposition by analogy and the course of reasoning therein. Smith v. Elder, 3 John. 105; Glen v. Hodges, 9 John. 67; King v. Sarria, 69 N. Y. 24. That the action can be maintained by the administrator appointed in this state, see the following: Dennick v. Railroad Co., 103 U. S. 11; Leonard v. Columbia Steam Navigation Co., 84 N. Y. 48. The same thing is shown by the reasoning of the court in Needham, Adm'r, v. Grand Trunk Ry. Co., 38 Vermont 304. (2) That this action is transitory is evident from its very nature. The following are a few of the many authorities establishing this universal rule, that all actions for injuries to persons or personal property are transitory: Glenn v. Hodges, 9 Johns. (N. Y.) 67; Gardner v. Thomas, 14 Id. 134; Shaver v. White, 6 Munf. (a.) 112; Smith v. Butler, 1 Daley (N. Y.) 508; Northern Ry. Co. v. Scholl, 16 Md. 337; Smith v. Bull, 17 Wend. 323; Genin v. Grier, 10 Ohio 209; Watts v. Thomas, 2 Bibb (Ky.) 458; Redgrave v. Jones,1 Har. & M. (Md.) 195; Ry. Co. v. Harris, 12 Wall. 65. (3) It is not against our “public policy” to sustain this action in our courts. The rule of “public policy” does not apply to such cases. Herrick v. Minneapolis & St. Louis Ry. Co., 31 Minn. 11; Story Conflict Laws, §§ 258 and 259; Shedd v. Moran, 10 Ill. App. (Bradwell) 618; Stoeckman v. T. H. & I. R. Ry. Co., Mo. Appeal; Boyce v. Wabash Ry., 18 Northwestern Rept. 673; King v. Sarria, 69 N. Y. 31; Commonwealth of Ky. v. Bassford, 6 Hill. (N. Y.) 526. (4) The evidence does not warrant the assumption that Vawter was negligent. It clearly fails to show that he was guilty of any negligence contributing directly to his death. On the subject of contributory negligence, it is held, that it must be such as contributes directly to the accident--must be the proximate cause. Wharton on Negligence, secs. 323, 4, 5, 6, 335, and 343; Buesching v. The St. Louis Gas Light Co., 73 Mo. 219; Whalen v. St. L., K. C. & N. Ry. Co., 60 Mo. 323; Meyers v. Chicago, R. I. & Pac. Ry. Co., 59 Mo. 223; Burham v. St. L. & I. M. Ry. Co., 56 Mo. 338; Nagel v. Missouri Pac. Ry. Co., 75 Mo. 665; U. P. Ry. Co. v. Rollins, 5 Kansas 167. (5) The instruction as to damages is correct. K. P. Ry. Co. v. Cutter, 19 Kan. 83; A., T. & S. F. Ry. Co. v. Brown, 26 Kan. 443; Balt. & Ohio R. R., 24 Md. 271; Chicago v. Scholten, 75 Ill. 468; Penn. Ry. Co. v. Goodman,62 Pa. St. 329; Railroad Co. v. Barron, 5 Wall. 90; Needham v. Ry. Co., 38 Vt. 294.

BLACK, J.

Plaintiff is the widow of W. R. Vawter; and was appointed administratrix of his estate by the probate court of Schuyler county, Missouri. She brings this suit in her representative capacity against the defendant to recover damages for the death of her husband. He was in the employ of the defendant. While making a trip over the road, his train left the main track and ran on a side track, at Parsons in the state of Kansas, came in collision with a stock train, and he was killed. His death, it is alleged, was caused by the negligence of defendant's servants, in leaving the switch at that place in an improper position. Defendant contends that he and those engaged with him on his train were guilty of negligence in running the train at a rate of speed prohibited by the defendant's rules, because of which he was killed.

1. Civil actions for the death of a person caused by the wrongful act, neglect, or omission of another, did not exist at common law. A right of action in such cases is given by the statute law of many of the states. These statutes have no extra-territorial effect, so that, as is conceded in this case, the plaintiff, if she can recover at all, must do so by force of the statutes of the state of Kansas, and not because of any statute of this state. To that end she pleads and bases her right to recover upon two sections of the statutes of that state, which are as follows: “When the death of one is caused by a wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.” Also: “Every railroad company organized, or doing business in this state, shall be liable for all damages done to employes of such company in consequence of any negligence of its agents, or any mismanagement of its engineers, or other employes to any person sustaining such damages.”

The question arises whether she can maintain this action in this state. The following authorities support her claim of right so to do. Leonard, ...