Burg v. Knox

• Decision Date: 20 December 1933
• Citation: 67 S.W.2d 96,334 Mo. 329
• Parties: Elmer C. Burg v. Maude E. Knox, Administratrix, Appellant
• Court: Missouri Supreme Court

67 S.W.2d 96

334 Mo. 329

Elmer C. Burg v. Maude E. Knox, Administratrix, Appellant

Supreme Court of Missouri

December 20, 1933

Appellant's Motion for Rehearing Overruled October 28 1933.

Appeal from Jackson Circuit Court; Hon. Ralph S. Latshaw Judge; Opinion filed at May Term, 1933, September 4, 1933 motion for rehearing filed; motion overruled October 28, 1933; motion to transfer to Court en Banc filed; motion overruled at September Term, December 20, 1933.

Affirmed.

Horace Guffin and Edmund B. Smith for appellant.

(1) The court committed reversible error in refusing to give the demurrer filed by the appellant to respondent's amended petition and in not sustaining the objection to introduction of any testimony in the case and in refusing to give the peremptory instruction in the nature of a demurrer requested by the appellant at the close of all the evidence in the case for the following reasons: (a) The petition stated no cause of action maintainable against this appellant under the statutes and laws of Missouri. Secs. 98, 99, R. S. 1929; Shupe v. Martin, 12 S.W.2d 450, 321 Mo. 811; Heil v. Rule, 34 S.W.2d 90, 327 Mo. 84; Springfield v. Clement, 296 Mo. 150, 246 S.W. 175. (b) The right to maintain respondent's alleged cause of action is claimed to accrue under the laws of Kansas and is sought to be enforced in Missouri in direct contravention of the positive law and contrary to the public policy of Missouri, and therefore is not enforceable in this State. See authorities cited under (a); Citizens Bank v. Hibernia Bank & Trust Co., 140 So. 705; Johnson v. Surman Bros., 49 S.W.2d 331; Bradford Elec. Light Co., Inc., v. Clapper, 286 U.S. 145, 52 S.Ct. 571; Union Trust Co. v. Grossman, 245 U.S. 412, 38 S.Ct. 147, 62 L.Ed. 308; The above four cases are not cited in the original briefs. Vawter v. Railroad Co., 84 Mo. 679; McGinnis v. Mo. Car & Foundry Co., 174 Mo. 225; Cary v. Schmeltz, 221 Mo. 136, 118 S.W. 947; Johnston v. Railroad Co., 164 S.W. 260; Clough v. Gardinier, 182 N.Y.S. 803; Hudson v. Van Hamm, 259 P. 374; Austin v. Hough, 10 S.W.2d 658; Parker-Harris Co. v. Stephens, 205 Mo.App. 873, 224 S.W. 1036; Texas Pac. Railroad Co. v. Richards, 4 S.W. 628; Mount Ida School v. Rood, 235 N.W. 230; Loranger v. Nadeau, 1 P.2d 1049; Mathison v. Railroad, 61 Kan. 667; Griffith v. Mut. Protective League, 200 Mo.App. 87, 205 S.W. 291; United States v. Freight Assn., 166 U.S. 340; "Words and Phrases" -- Bouvier's Law Dictionary. (2) The right to maintain this action is remedial and is governed by the lex fori. Ruhe v. Buck, 124 Mo. 178; Scudder v. Bank, 91 U.S. 406; State of Kansas ex rel. v. Fidelity & Guaranty Co., 14 S.W.2d 581, 322 Mo. 121; Rogers v. Rogers, 177 S.W. 382, 265 Mo. 200; See authorities cited under 1 (b). (3) The opinion of the Kansas City Court of Appeals in the instant case is not contrary to the decision of the St. Louis Court of Appeals in the case of Byram v. East St. Louis Ry. Co., 39 S.W.2d 376. Burg v. Knox, 51 S.W.2d 797; Byram v. East St. Louis Ry. Co., 39 S.W.2d 376.

J. Francis O'Sullivan, Joseph H. Brady and Maurice J. O'Sullivan for respondent.

(1) The public policy of this State authorizes this action. (a) It is authorized by express statute. Sec. 60-3201, G. S. Kan., 1923; Secs. 185, 189, 705, R. S. 1929. Difference in the laws of the two states does not make the Kansas law contrary to that of Missouri. Mosby v. Manhattan Oil Co., 52 F.2d 368; Austin v. Hough, 10 S.W.2d 659. (b) The question of a foreign statute being against public policy is material only when it is enforced as a matter of comity. State ex rel. v. Natl. City Bank, 274 S.W. 948; State ex rel. v. Grimm, 239 Mo. 186, 143 S.W. 483; Freedy v. Trimble Compton Pro. Co., 32 S.W.2d 150; Jones v. Railroad Co., 178 Mo. 528, 77 S.W. 894. (c) The right to maintain this action is governed by the Kansas law. Lee v. Ry. Co., 195 Mo. 400, 92 S.W. 617; Taylor v. Integrity M. C. Co., 216 Mo.App. 599, 265 S.W. 881; Woodward v. Bush, 282 Mo. 163, 220 S.W. 839; Newlin v. Railroad Co., 222 Mo. 375, 121 S.W. 125; Yost v. Union Pac. Ry. Co., 245 Mo. 219, 149 S.W. 577; Mosby v. Manhattan Oil Co., 52 F.2d 364; Dennick v. Railroad Co., 103 U.S. 11, 26 L.Ed. 442. (2) The right to maintain this action is substantive, and not merely remedial, and is governed by the lex loci. Chubbock v. Holloway, 234 N.W. 869; Orr v. Ahern, 139 A. 691; Needham v. Grand Trunk Ry. Co., 38 Vt. 295; Authorities under Point 1 (c); Menard v. Goltra, 40 S.W.2d 657; Byram v. Ry. Co., 39 S.W.2d 379. (3) Appellant's authorities distinguished. Vawter v. Railroad Co., 84 Mo. 679; Lee v. Ry., 92 S.W. 617; McGinnis v. Mo. Car & F. Co., 174 Mo. 225; Cary v. Schmelz, 221 Mo. 132, 119 S.W. 946; Johnson v. Ry. Co., 164 S.W. 260; Ruhe v. Buck, 124 Mo. 178; Kansas v. U.S. F. & G. Co., 14 S.W.2d 576; Rogers v. Rogers, 177 S.W. 382; Clough v. Gardiner, 182 N.Y.S. 803; B. & O. Ry. Co. v. Joy, 173 U.S. 226, 43 L.Ed. 677; Adams v. Dick, 170 N.Y.S. 21; Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 201.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

PER CURIAM

This case comes to us by transfer from the Kansas City Court of Appeals upon the certificate of one of its judges that the opinion of that court is contrary to a previous decision of the St. Louis Court of Appeals. [Burg v. Knox, 54 S.W.2d 797.] In these circumstances it is our duty to determine the cause "as in case of jurisdiction obtained by ordinary appellate process" (Const., Sec. 6, Art. VI, Amendment of 1884), whether or not the stated conflict exists. The necessary facts and the question of law presented are thus stated in the opinion of the Kansas City Court of Appeals (54 S.W.2d 797):

"This is an action for personal injuries. There was a verdict and judgment in favor of plaintiff in the sum of $ 7,500. 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 Sec. 60-3201, General Statutes of Kansas.]"

The Kansas City Court of Appeals ruled that respondent (plaintiff) could not maintain his action and accordingly it reversed the judgment of the trial court. The gist of the opinion of the appellate court is that under the common law, declared by Section 99, Revised Statutes 1929, there is prohibited the bringing of a suit against the personal representative of a deceased person upon a cause of action arising in this State founded upon the negligence of the wrongdoer occurring during his lifetime. Therefore, the opinion concludes, it is against the public policy of this State to permit such a cause of action arising under the laws of another state to be prosecuted in our courts. In our view, the Court of Appeals arrived at this result by imputing to Sections 98 and 99, Revised Statutes 1929, a vigor that they do not have, and by attributing to Section 705, Revised Statutes 1929, an impotency which it does not merit.

Sections 98 and 99, Revised Statutes 1929, are as follows:

"Sec. 98. -- 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."

"Sec. 99. -- 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."

These sections were placed upon the statute books of Missouri in 1835, as Sections 24 and 25, of Article II, of an act respecting executors and administrators approved March 21, 1835 (see page 48, R. S. 1835). They were the first modification of the rule of the common law that actions in tort do not survive the death either of the wronged or of the wrongdoer. But they limit their modification to the survival of actions for wrongs done to property. [Vawter v. Railway Co., 84 Mo. 686, 54 Am. St. Rep. 105; Bates v. Sylvester, 205 Mo. 493, 104 S.W. 73, 11 L. R. A. (N. S.) 1157; 120 Am. St. Rep. 761; 12 Ann. Cas. 457; Toomey v. Wells, 218 Mo.App. 534, 280 S.W. 441.]

For twenty years following 1835, present Sections 98 and 99 were the only statutory expressions of the law of Missouri concerning actions for torts in case of the death either of the wrongdoer or of the person wronged. They have not been repealed or amended, but they have been modified by other legislation as we shall see. Through the years they have been the pioneer sections in the progress of Missouri legislation for the removal of the common-law limitations of death upon causes of action. Yet they are but pioneer sections. In 1855 the General Assembly passed "an act for the better security of life, property...