Casey v. Hoover

• Decision Date: 19 June 1906
• Citation: 197 Mo. 62,94 S.W. 982
• Parties: CASEY v. HOOVER et al.
• Court: Missouri Supreme Court

94 S.W. 982

197 Mo. 62

CASEY v. HOOVER et al.

Supreme Court of Missouri, Division No. 1.

June 19, 1906.

DEATH—ACTIONS—PERSONS ENTITLED TO SUE.

Under Rev. St. Okl. 1893, §§ 4313, 4314, authorizing actions for wrongful death by the personal representatives of the decedent, or, in case he was a nonresident or, being a resident, no personal representative had been appointed, by the widow or next of kin, the widow of a resident of Oklahoma, having been appointed as his administratrix, cannot sue in Missouri in her individual capacity for the wrongful death of her husband.

Appeal from Circuit Court, Jackson County.

Action by Catherine Casey against J. W. Hoover and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

C. F. Mead, for appellant. Haff & Michaels and L. W. McCandless, for respondents.

VALLIANT, J.

Plaintiff sues to recover damages for the death of her husband, caused, as she alleges, by the negligence of the defendants. The alleged wrong occurred in Oklahoma, and the suit is founded on a statute of that territory, as follows:

Rev. St. Okl. 1893, § 4313 (Code, par. 435): "When the death of one is caused by the wrongful act or omission of another, the personal representatives 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."

Rev. St. Okl. 1893, § 4314 (Code, par. 436): "That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in section four hundred and thirty-five of this chapter, is or has been at the time of his death in any other state or territory, or when, being a resident of this territory, no personal representative is or has been appointed, the action provided in said section four hundred and thirty-five may be brought by the widow, or where there is no widow, by the next of kin of such deceased."

In her petition the plaintiff assumes to sue in three separate capacities, as widow, as administratrix of the estate of her deceased husband appointed and qualified in Oklahoma, and as the appointee of the circuit court in this state to bring this suit for the benefit of herself and her minor children. The petition in due form states a cause of action under the Oklahoma statute, if it states facts showing that the plaintiff has legal capacity to sue. Defendants filed a special demurrer to the petition on the ground that it shows that the plaintiff has not legal capacity to maintain the suit. The petition states that her husband at the time of his death was a resident of Oklahoma, and that she now resides there, the defendants are nonresidents of Oklahoma, and therefore beyond the reach of process in that territory, and for that reason she cannot sue them there. The suit was begun before the decision of this court in McGinnis v. Mo. Car. & F. Co., 174 Mo. 225, 73 S. W. 586, 97 Am. St. Rep. 553, and the plaintiff's appointment and authorization by the circuit court to maintain the suit was under section 548, Rev. St. 1899, which this court in the McGinnis Case decided was invalid. It was after that decision that the demurrer came on to be heard, and, doubtless being guided by that decision, the court sustained the demurrer, and the plaintiff appealed.

Plaintiff does not now contend that she can maintain the suit by virtue of her appointment under section 548, or by virtue of her appointment as administratrix in Oklahoma; but she claims that under the law as declared in Jones v. Railway, 178 Mo. 528, 77 S. W. 890, 101 Am. St. Rep. 434, she is entitled to sue in the capacity of widow. In the McGinnis Case the suit was founded on a statute of Illinois similar to the Oklahoma statute, but with this difference:...