Burg v. Knox

• Decision Date: 05 July 1932
• Docket Number: 17567
• Citation: 54 S.W.2d 797
• Parties: Elmer Burg, Respondent, v. Maude E. Knox, Admr., Appellant
• Court: Kansas Court of Appeals

54 S.W.2d 797

Elmer Burg, Respondent, v. Maude E. Knox, Admr., Appellant

No. 17567

Court of Appeals of Missouri, Kansas City

July 5, 1932

APPEAL FROM JACKSON CIRCUIT COURT.

Reversed.

Erving C. Bland, Trimble, P.J., concurs; Arnold J., absent.

OPINION

Erving C. Bland, J.

[Pg 1] This is an action for damages for personal injuries. There was a verdict and judgment in favor of plaintiff in the sum of $ 7500.00. Defendant has appealed.

The facts show that plaintiff, while riding in an automobile in Kansas City, Kansas, on his way home in that state, as a guest of one James D. Knox, a resident of this state, was injured as a result of the carelessness and negligence of said Knox in driving his car. Knox died as a result of his own negligence in the matter and the defendant was appointed by the Probate Court of Jackson County in this state as administratrix of his estate. Thereafter, this suit was brought.

The sole question presented to us for determination by the parties to this action is whether one may maintain, in this state, a cause of action against the administratrix of the estate of a tort feasor when the laws or statutes of the state, where the wrong was committed, provide for such a cause of action, it being admitted that had this suit been brought in the state of Kansas it could have been maintained under the statutes of that state. (See section 60-3201 General Statutes of Kansas.)

[Pg 2] This action may not be maintained in this state unless it be on the ground of comity and whether, as a matter of comity we will enforce this cause of action in this state depends upon whether such enforcement would be contrary to the public policy of this state. Public policy in that sense does not mean sound policy or good policy, but the policy of the state as expressed in its constitution and laws and in the decisions of our highest courts. (Griffith v. Mut Protective League, 200 Mo.App. 87, 205 S.W. 286; Johnston v. Chi. Great Western R. Co., 164 S.W. 260, 262.) We will therefore, examine into the laws of this state and the decisions of our appellate courts concerning the matter.

At common law no cause of action lay against the estate of a person for a tort committed by him during his lifetime, or in favor of the representative of one injured by the tort of another. The law did not allow a suit to be maintained after the death of either the person wronged or the wrong-doer. ( City of Springfield v. Clement, 296 Mo. 150, 246 S.W. 175; Wells v. Davis, 303 Mo. 388, 261 S.W. 58.) Section 98 R.S. 1929, provides as follows:

"For all wrongs done to property rights, or interest of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, and, after his death, against his executor or administrator, in the same manner and with like effect, in all respects, as actions founded upon contract."

Section 99 R.S. 1929, reads as follows:

"The preceding section shall not extend to actions for slander, libel, assault and battery or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator."

In Vawter v. Mo. Pac. R. Co., 84 Mo. 679, 686, the Supreme Court stated: "For fear that section 96 (now section 98 R.S. 1929) might be construed to confer upon the administrator a right to sue for injuries to the person of the intestate, the next, as will be seen, declares in express terms that he shall not do so." [Pg 3] In other words, the Supreme Court held that what is now section 99 of our statute positively forbids the bringing of a suit for personal injuries, after the death of the person injured, by the executor or administrator of his estate, against the wrongdoer. Of course the same rule applies to the bringing of a suit for personal injuries after the death of the wrongdoer against his executors or administrators. (Sections 98, 99 R.S. 1929). The statement of the Supreme Court in the Vawter case may be technically inaccurate, as it would seem that section 99 merely leaves the common law as it was in force prior to the enactment of section 98.

However, since the enactment of section 99 of our statute this state has modified its policy somewhat concerning the bringing of suits for wrongful death by providing that such suits may be maintained by an executor or administrator. (See section 3262, 3263 and 3264 R.S. 1929.) It also enacted what is now section 3280, providing as follows:

"Causes of action upon which suit has been or may hereafter be brought by the injured party for personal injuries, other than those resulting in death, whether such injuries be to the health or to the person of the injured party, shall not abate by reason of his death, nor by reason of the death of the person against whom cause of action shall have accrued; but in case of the death of either or both such parties, such cause of action shall survive to the person representative of such injured party, and against the person, receiver or corporation liable for such injuries and his legal representatives, and the liability and the measure of damages shall be the same as if such death or deaths had not occurred."

Under this section recovery for damages for a tort is limited to suits actually filed and pending prior to the death of the person wronged or of the wrongdoer, the cause of action being destroyed by the tort feasor's death. (Shupe v. Martin, 321 Mo. 811, 12 S.W. (2nd) 450.)

[Pg 4] Paraphrasing what was said in the Vawter case, section 99 of our statute declares in expressed terms that such a suit as this can not be maintained had the cause of action arisen in Missouri because the statute expressly declares to the contrary. However, whether the statute so provides or merely leaves the rule as it was at common law, we do not think that this action may be maintained. It was held in Tex. P. R.R. Co. v. Richards, 68 Tex. 375, 4 S.W. 627 (Tex.), that a statute of one state by which a right of action for personal injuries survives, will not be enforced by the courts of another state, where the common law, by which the cause of action dies with the person is unchanged. The general rule in reference to the matter of enforcing a cause of action ex delicto arising in a foreign state is stated in R.C.L. as follows:

"With reference to common-law causes of action, at least, the question whether they are compatible with the public policy of the forum seems generally to be regarded as furnishing the only criterion of the court's jurisdiction. * * * *

"When the cause of action depends upon a statute, the majority of the courts favor the position that there must be a statute in the forum similar to that of the place where the cause of action arose. Some of the courts allude to the similarity of the statutes as merely showing that the enforcement of the action in the forum is not against the public policy; and a few of the cases may even be regarded as authority against the necessity of a similar statute in the forum. At all events it is not essential that the statutes of the two states should be precisely the same, it being sufficient if they are substantially alike, or if they are of the same import or character." (5 R.C.L. p.1040.)

(See also 12 C.J. pp. 453, 454; 17 C.J. pp. 1255 to 1259 inclusive, and further see 8 R.C.L. p.795, where it is stated):

"The general rule just stated as to the right to sue in one state under the statute of another state permitting recovery for death by wrongful act, being based upon principles of comity, is subject to the qualification that the statute of the state under which the cause of action arose shall not be inconsistent with the statute or the public policy of the state in which the right of action is sought to be enforced. If [Pg 5] the policy of the forum has been expressed positively in a statute, that policy must prevail. When the Legislature speaks upon a subject upon which it has constitutional power to legislate, public policy is what the statute indicates."

R.C.L. at page 1040, in support of what it states to be the holding in a majority of the courts, cites a long list of cases, including the Vawter case. Even in those states having decisions that may be regarded as authority against the necessity of having similar statutes in the two states, the courts say that the foreign statute will not be enforced where it is contrary to the law or the policy of the state where suit is brought. (See O'Reilly v. N.Y. & N.E. R.R., 16 R.I. 388, 396, 17 A. 171.) Of course, the mere variance of the law in two states, so long as they are not dissimilar, does not constitute a difference in policy, such as to contravene the public policy of the law of the forum. That is all that is held in the case of Mosby v. Manhattan Oil Co., 52 Fed. (2nd) 364, cited by plaintiff. (See also 5 R.C.L. pp.911, 912.)

However, we not only have no such statute as the one in Kansas under consideration, but our law, either common or statutory, positively forbids the bringing of such a suit had the cause of action arisen in this state. We think there is no doubt but that it would be contrary to our public policy, within the meaning of that phrase as defined by our laws and courts, to permit the prosecution of this case in this state. (5 R.C.L. pp.1040, 1041; 12 C.J. pp. 453, 454; Clough v. Gardiner, 111 Misc. 244, 182 N.Y.S. 803; Hudson v. Von Hamm, 85 Cal.App. 323, 259 P. 374; Mount Ida School v. Rood, 253 Mich. 482, 235 N.W. 227 (Mich.); Loranger v. Nadeau, 1 P.2d 1049 (Calif.)

We have examined the cases of this state cited by the plaintiff and find that they go no further than to uphold that part of pl...