92 S.W. 614 (Mo. 1906), Lee v. Missouri Pacific Railway Company

Citation:92 S.W. 614, 195 Mo. 400
Opinion Judge:VALLIANT, J. --
Party Name:SUSAN A. LEE et al. v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
Attorney:Elijah Robinson for appellant. Frank P. Walsh, Rozzelle, Vineyard & Thacher and John G. Park for respondents.
Judge Panel:VALLIANT, J. Brace, C. J., Gantt and Lamm, JJ., concur; Marshall, J., dissents; Burgess and Fox, JJ., dissent on the ground that, in their opinion, the deceased was guilty of contributory negligence.
Case Date:March 30, 1906
Court:Supreme Court of Missouri
 
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Page 614

92 S.W. 614 (Mo. 1906)

195 Mo. 400

SUSAN A. LEE et al.

v.

MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri

March 30, 1906

Appeal from Jackson Circuit Court. -- Hon. Edw. P. Gates, Judge.

Affirmed.

Elijah Robinson for appellant.

(1) The court should have sustained defendant's objection to the introduction of any evidence under plaintiffs' petition. It was nowhere alleged in said petition that the deceased, if death had not ensued, could have maintained an action under the laws of the State of Kansas, where the accident occurred, for the acts and omissions complained of. 8 Am. and Eng. Ency. Law (2 Ed.), 881; Debevoise v. Railroad, 99 N.Y. 377; Hamilton v. Railroad, 39 Kan. 56. (2) Plaintiffs have no legal capacity to maintain this suit. At common law no one could maintain an action on account of the death of another. 3 Ell. Ry. Law, sec. 1359; Loague v. Railroad, 91 Tenn. 458. If any right of action exists, it is by virtue of the statute of Kansas; and that statute being in derogation of the common law, must be strictly construed. 3 Ell. Ry. Law, sec. 2146; Jackson v. Railroad, 87 Mo. 442; White v. Maxey, 64 Mo. 559; Proctor v. Railroad, 64 Mo. 128; Sutherland's Stat. Con., sec. 371. The action is maintainable by the person who is, by the terms of the Kansas statute, authorized to maintain it, and by no one else. Proctor v. Railroad, 64 Mo. 119; Connor v. Railroad, 64 Mo. 117; McNamara v. Slavens, 76 Mo. 330; Gibbs v. Hannibal, 82 Mo. 149; Barker v. Railroad, 91 Mo. 86; Gray v. McDonald, 104 Mo. 311; Miller v. Railroad, 109 Mo. 359; Hennessey v. Brewing Co., 145 Mo. 112; McGinnis v F. & C. Co., 174 Mo. 225; Hamilton v. Railroad, 39 Kan. 56; Eureka v. Merrifield, 53 Kan. 794; Thornburg v. Straw Board Co., 141 Ind. 445; Chevis v. Rogers, 50 La. Ann. 57; Tel. Co. v. McGill, 57 F. 701; Usher v. Railroad, 126 Pa. 206; 3 Ell. Railroad Law, sec. 368; Miller v. Railroad, 55 Ga. 143; 5 Ency. P. and P., 889. Under the statute of Kansas the widow, and the widow alone, and no one else, could maintain the suit. Secs. 418 and 419, art. 18, chap. 95, G. S. (Kan.) 1897. But under the decisions of this court the provisions of the Kansas statute could not be enforced in the courts of this State prior to the act of 1891. Vawter v. Railroad, 88 Mo. 674; Oates v. Railroad, 104 Mo. 514; McGinnis v. Mo. C. & F. Co., 174 Mo. 225. Under the act of 1891 the widow cannot maintain this suit alone, because she is not the sole beneficiary. Secs. 547, 548, R. S. 1899. The children have each an equal interest with the widow in the proceeds. They are represented by a trustee, without whom, under the Misouri statute, the suit could not be maintained, but under the statute of Kansas no right of action is vested in the trustee; and the Legislature of Missouri could not legislate for the State of Kansas, could not change or modify the law of that State, could not vest the right of action in a person different from the person in whom it is vested by the statute of Kansas. (3) The case is governed by the law of Kansas. Plaintiffs can have no cause of action unless deceased could, if death had not ensued, have maintained an action for the injury sustained, and the question as to whether he could have maintained such an action is governed by the law of Kansas. Fogarty v. Transfer Co., 79 S.W. 664; Turner v. Tunnel Co., 11 Mich. 578; Bridger v. Railroad, 27 S.C. 456. (4) Deceased assumed the risk of injury from the unblocked guardrails, and therefore plaintiffs cannot recover. He was an experienced railroad man, of more than average intelligence, perfectly familiar with the yard in which he was employed and with the danger from unblocked guard rails, and by continuing in the service of the defendants must be held to have assumed the risk of injury incident to the then existing conditions. Rush v. Railroad, 36 Kan. 129; Weld v. Railroad, 39 Kan. 68; Railroad v. Schroeder, 47 Kan. 315; Clark v. Railroad, 48 Kan. 654; Railroad v. Monden, 50 Kan. 539; Sweet v. Railroad, 65 Kan. 812; Walker v. Scott, 67 Kan. 814. (5) Deceased was guilty of contributory ngeligence, without which the accident would not have occurred, and therefore plaintiffs cannot recover. He went in between the cars, while in motion, when it was not necessary to do so. The cars were on a curve, the couplings were of different patterns, and the pin was fastened, all of which he could have ascertained without going between the cars. He was between the cars a distance of from 150 to 200 feet, while they were moving from four to six or eight miles an hour, and he was running at the time the accident occurred. Towner v. Railroad, 52 Mo.App. 648; Caldwell v. Railroad, 80 S.W. 897; Marsh v. Railroad, 56 Ga. 274; Williams v. Railroad, 43 Iowa 396; Railroad v. Estes, 37 Kan. 731; Railroad v. Tindall, 57 Kan. 719; Sweet v. Railroad, 65 Kan. 812; Carrier v. Railroad, 59 P. 1075; Lothrop v. Railroad, 150 Mass. 423; Culbertson v. Railroad, 88 Wis. 569; Burk v. Edison Co., 89 Hun 501; 1 Bailey Per. Inj., sec. 1121; Gilbert v. Railroad, 128 F. 529; Morris v. Railroad, 47 C. C. A. 661; Coal Co. v. Reid, 29 C. C. A. 475; McCain v. Railroad, 22 C. C. A. 99; Gleason v. Railroad, 19 C. C. A. 636; Russell v. Tillotson, 140 Mass. 201. (6) There was no evidence of negligence on the part of the defendant. The simple fact that the guardrail was not blocked and that the accident occurred, does not show negligence on the part of the defendant. Gilbert v. Railroad, 128 F. 529.

Frank P. Walsh, Rozzelle, Vineyard & Thacher and John G. Park for respondents.

(1) An allegation that "deceased, if death had not ensued, could have maintained an action under the laws of the State of Kansas," would have been a legal conclusion. The facts were fully stated, and the amended petition showed a cause of action. Gurney v. Railroad, 13 N.Y.S. 645; affirmed, 59 Hun 625. Plaintiffs have legal capacity to sue. (2) (a) The damages inure to the exclusive benefit of the widow and children. Statutes of Kansas, secs. 418, 419. The widow was entitled to bring this action in her own name, there being no administration. R. S. 1899, sec. 547. The widow was entitled to bring the action on behalf of the children, as trustee of an express trust. Jones v. Railroad, 178 Mo. 528. There can now be no doubt of the plaintiffs' capacity to sue. The following decision is on all fours with this case, as to place of death, capacity of plaintiffs and law applicable: Jones v. Railroad, 178 Mo. 528. (b) Under the law of Kansas the widow would have had the right to sue in Kansas in her own name. She would have been sole plaintiff. Kansas Statutes, secs. 418, 419. She is also a proper and necessary party plaintiff under the law of this State. R. S. 1899, secs. 547, 548. Defendant objects that Mrs. Lee, as trustee for the children, was erroneously joined as plaintiff. This objection appeared upon the face of the amended petition and could only be raised by demurrer. Jones v. Railroad, 178 Mo. 538; R. S. 1899, secs. 598, 599; Spillane v. Railroad, 111 Mo. 562. The point could be preserved only by standing on the demurrer, and declining to plead to the merits. Jones v. Railroad, 178 Mo. 539. By answering to the merits, defendant waived all objections to the joinder of the plaintiffs. Jones v. Railroad, 178 Mo. 539; Paddock v. Somes, 102 Mo. 235; Elfrank v. Seiler, 54 Mo. 136; Donahue v. Bragg, 49 Mo.App. 276; Spillane v. Railroad, supra; State to use v. Sappington, 68 Mo. 457; Ware v. Johnson, 55 Mo. 504. (3) The law of evidence is the lex fori and the Kansas law is therefore immaterial. Appellant's assertion that Mrs. Lee could not have recovered in Kansas is a mere gratuity and unsupported by the record. There is no evidence in the record that Mrs. Lee could not have maintained an action in Kansas, or that she was ever so advised. The presumption concerning the law of sister states is that it is the same as our own. Wilson v. Cockrill, 8 Mo. 7; Houghtaling v. Ball, 19 Mo. 86; Barhydt v. Alexander, 59 Mo.App. 194; White v. Chaney, 20 Mo.App. 396; Silver v. Railroad, 21 Mo.App. 5. The law of another State, if claimed to be different from our law, must be pleaded and proved. McDonald v. Life Assn., 154 Mo. 628; Flato v. Mulhall, 72 Mo. 525; McClain v. Abshire, 63 Mo.App. 341; Bath Gas Co. v. Claffy, 151 N.Y. 24; Sloan v. Torry, 78 Mo. 625. Kansas decisions are cited by appellant to establish these propositions: first, that the failure of defendant to block the guardrail in question was no evidence of negligence; second, that acceptance of employment by deceased in defendant's yard was conclusive evidence that he agreed to the conditions, and that his continuance in defendant's employ constituted conclusive evidence that he was familiar with all the conditions. "Rules of evidence to be applied in a cause of action are a part of the law of the remedy, and will be supplied by the lex fori." 22 Am. and Eng. Ency. Law (2 Ed.), 1385. "The law of evidence is the lex fori. Whether a witness is competent or not, whether certain matters require to be proven or not, whether certain evidence proves a certain fact or not, are to be determined by the law of the country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it." Bain v. Railroad, 3 H. L. Cas. 19. To the same effect are: Railroad v. Mitchell, 92 Ga. 80; Story on Conf. of Laws (8 Ed.), 855, 856; Hoadley v. Transp. Co., 115 Mass. 304; Jones v. Railroad, 80 Minn. 488; Penna. Co. v. McCann, 54 Ohio St. 10. Questions pertaining to the law of negligence are questions of general law, in which the court of the forum is not bound to follow the doctrines of the local courts where the cause of action arose. Railroad v. Baugh, 149 U.S. 368; Hough v. Railroad, 100 U.S. 226. The decision principally relied on by defendant, Rush v. Railroad, 36 Kan....

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