Berry v. Kansas City

• Decision Date: 11 November 1893
• Citation: 52 Kan. 759,34 P. 805
• Court: Kansas Supreme Court
• Parties: HELEN A. BERRY v. THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY

34 P. 805

52 Kan. 759

HELEN A. BERRY v. THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY

Supreme Court of Kansas

November 11, 1893

Error from Bourbon District Court.

ON December 24, 1887, Wm. Y. Berry was an engineer of the Missouri Pacific Railway Company, which company at that time was operating the Missouri, Kansas & Texas railway.He ran an engine from Sedalia, Mo., to Fort Scott, Kan., and while on one of his trips he was killed in Fort Scott Bourbon county, in this state, at a crossing by a train of the Kansas City, Fort Scott & Gulf Railroad Company which in April, 1888, was consolidated with other railroads under the laws of Kansas, and constituted and became the Kansas City, Fort Scott & Memphis Railroad Company.At the time of the killing, Berry was a citizen and resident of Sedalia, Mo, where he had a wife and two children living.He died intestate, and no letters of administration were ever issued, nor was any administrator of his estate ever appointed in either Kansas or Missouri.On the 23d day of April, 1889, Helen A. Berry, the widow of Wm. Y. Berry brought her action against the Kansas City, Fort Scott &amp Memphis Railroad Company, alleging that her husband, Wm. Y Berry, was run over and killed by the negligent operation of the Kansas City, Fort Scott & Gulf railroad.The jury returned a general verdict for the plaintiff, Mrs. Helen A. Berry, and assessed the damages at $ 5,000.They also returned the following special findings:

"Ques.1.Was the plaintiff the wife of William Y. Berry?Ans.Yes.

"Q. 2.Was said William Y. Berry killed on December 24, 1887?A.Yes.

"Q. 3.Did the said William Y. Berry die without leaving any will?A.Yes.

"Q. 4.Were the plaintiff, Mrs. Berry, and her husband, on December 24, 1887, up to the time of his death, residents and citizens of the state of Missouri?A.Yes.

"Q. 5.What was the age and occupation of the said William Y. Berry at the time of his death?A.Age, 32 years; occupation, locomotive engineer.

"Q.6.What wages as engineer did said William Y. Berry receive up to and prior to his death?A.At an average of $ 130 per month.

"Q. 7.Did the deceased, William Y. Berry, maintain his said wife and children before his said killing?A.Yes.

"Q. 8.Was any executor or administrator appointed of the estate of William Y. Berry, deceased?A.No.

"Q. 9.What was the condition of the health of said William Y. Berry at the time of his death?A.Good.

"Q. 10.In what county and state did the death of William Y. Berry take place, on December 24, 1887?A.Bourbon county, Kansas.

"Q. 11.Was the Kansas City, Fort Scott & Gulf railroad constructed and in operation in Bourbon county, Kansas, on December 24, 1887?A.Yes.

"Q. 12.Did the Kansas City, Fort Scott & Gulf Railroad Company consolidate with other railroad companies in April, 1888, and thereby form the Kansas City, Fort Scott & Memphis Railroad Company?A.Yes.

"Q. 13.Was the Kansas City, Fort Scott & Gulf Railroad Company operating the Kansas City, Fort Scott & Gulf railroad on December 24, 1887?A.Yes.

"Q. 14.If said William Y. Berry was killed by the negligence of the Kansas City, Fort Scott & Gulf Railroad Company, on December 24, 1887, in what did that negligence consist?A.First, by not bringing their train to a full stop before reaching a crossing.Second, by running at too high rate of speed on approaching a grade crossing.Third, by the head brakeman not being at his post on approaching a crossing.

"Q. 15.If Willam Y. Berry was guilty of any contributory negligence, in what did it consist?A.He was not guilty of any contributory negligence."

To the reception of the general verdict, and the special questions and answers thereto, the defendant objected at the time, and the court declined to receive or record the same as a verdict, but permitted the same to be filed, in order that the whole proceedings might appear on the record.Thereupon the railroad company filed the following motion:

"And now that the jury has brought in a general verdict for the plaintiff, together with answers to certain questions propounded by the plaintiff's counsel, the defendant asks the court to instruct and require the jury to bring in a general verdict in favor of the defendant, upon the unquestioned law of the case.

WALLACE PRATT,

W. C. PERRY,

C. W. BLAIR,

Defendant's Attorneys."

To the presentation of said motion and the hearing of the same, the plaintiff, by her attorneys, duly objected, which objection was overruled by the court, and the plaintiff excepted.Thereupon the court sustained the motion, to the sustaining of which the plaintiff duly excepted; and thereupon the court ordered the jury to find for the defendant, and wrote out the following verdict, and called upon the foreman of the jury to sign the same, which he did; and thereupon the jury was discharged.A copy of said verdict is as follows: "We, the jury, find for the defendant.-- W. H. GILLETT, Foreman."

Subsequently, the plaintiff filed her petition to set aside the general verdict directed by the court, which was overruled.The plaintiff then asked the court to render judgment in her favor upon the special findings and the general verdict rendered in her favor.This was also overruled.The court then overruled the motion for a new trial by the plaintiff.Thereupon the court rendered judgment in favor of the railroad company and against the plaintiff.The plaintiff, Helen A. Berry, excepted, and brings the case here.

Judgment reversed.

E. F. Ware, for plaintiff in error:

A foreign administratrix--Mrs.Berry--would have had the right to have brought suit at the time of the killing.16 Kan. 568;29 id. 420.The death having been occasioned by the negligence of the railroad company, the power to bring suit resided somewhere.An administratrix bringing suit does not sue as administratrix, because the sum recovered does not belong to the estate.18 Kan. 46;29 id. 420.A foreign administratrix is simply an appointee, and would sue, not by virtue of the laws of her own state, but by virtue of the laws of the state of Kansas.As, at the time of the death of Berry, the foreign administratrix had a right to sue in the courts of the state of Kansas, and as the law was afterward amended so that the widow could sue, then the change was simply a change of remedies, and the railroad company being liable anyhow, it has not been injured by the new law.

An attack was made upon the new law in the court below, and the court below held it void, as being retrospective.If it should be stated that, under the former law, an administratrix from Missouri could not sue, we reply that this court can take no judicial notice of what the laws of the state of Missouri are at the time that any suit has been brought or tried.And there was no pleading in this case as to the condition of the laws of the state of Missouri, and, even if there were, the foreign administratrix was simply an appointee, and did not sue as an administratrix.

If, however, this court should be of the opinion that no remedy whatever existed at the time the new law went into effect, we still say that the law was good in its retrospective operation.The law did not impair the obligation of any contract; it enacted no ex post facto law; it interfered with no vested rights, because nobody has any vested rights in the killing of human beings with impunity.In no sense of the word does the new law violate any principle of natural justice; in no sense does it violate any principle of public policy.It enforces a moral obligation and right.

"No case has been found where a court has declared a statute law to be void because it conflicted with some undefined right not secured by a written constitution, however valuable that might have been considered."People v. Gallagher, 4 Mich. 244;See, also, Const., Bill of Rights, § 18.

In regard to the view which courts take, that legislation of the kind here described is remedial and is constitutional, we refer to the following citations: Wade, Retroactive Law, §§ 24, 83, 214;Cooley, Const. Lim., starpages 361, 371, 373, 581;Endlich, Stat., §§ 283, 284;3 Kan. 123;23 N.W. 689;1 A. 360;21 F. 99; 2 Watts (Pa.), 433;2 Ohio St. 152;24 id. 554;5 Am. Dec. 645;53 id. 575;16 Kan. 498;30 N.W. 478;33 La. Ann. 709;41 Ind. 49;16 Barb. N.Y. 188;95 U.S. 644;6 Cent. L. J. 144;7 id. 226;3 W.Va. 645.

Wallace Pratt, W. C. Perry, and Chas. W. Blair, for defendant in error:

Purged of all surplusage, the case stands thus: Plaintiff brought suit for the death of her husband, issue was joined, the testimony all heard, and the court instructed the jury to find for the defendant, which was accordingly done.The plaintiff then brought the case to this court for review, without bringing up the testimony, and asks this court to say that the judge below decided erroneously, without giving this court the testimony on the trial, and thus enabling it to decide intelligently.Will the court do it?

It was claimed before the court below that the act of 1889 pretending to give a right of action to the widow for the wrongful killing of her husband, was an attempted amendment of § 422 of the code, and therefore unconstitutional, because not made as amendments can only be made; in short, that it was in violation of § 16, article 2, of the stateconstitution.It can scarcely be questioned, we think, that the act of 1889 is an attempt to amend § 422 of the code.It refers to that section by name and number, and gives to the widow, and in certain cases to the next of kin, all the right that § 422 gives only to the personal representatives of the deceased.SeeRenter v. Bauer, 3 Kan. 505;City of Troy v. Railroad Co., 11 id. 519;Case v. Bartholow, ...