Chicago, R.I. & P. Ry. Co. v. McIntire

Decision Date14 November 1911
Citation119 P. 1008,29 Okla. 797,1911 OK 369
PartiesCHICAGO, R.I. & P. RY. CO. v. McINTIRE.
CourtOklahoma Supreme Court

Syllabus by the Court.

A cause of action accrued in the state of Kansas under the statute of that state, which provides: "Every railroad company organized or doing business in the state of Kansas shall be liable for damages done to any employé of said company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employés, to any persons sustaining such damages; provided. ***" Section 1, c. 281, Laws of Kansas 1907. The law of this state concurs in holding that the act complained of under the Kansas statute gives a right of action. Section 36, art. 9 Constitution. Held, that the Kansas statute is not against the public policy or the laws of this state, and although such right of action exists by statute in the foreign jurisdiction, and not by common law, the same may be enforced in the courts of this state.

A petition containing general averments of negligence, "as hereinbefore complained of, consisted in this," presents only such issues as are found in the specific allegations following Chicago, Rock Island & Pacific Ry. Co. v Wheeler, 70 Kan. 755, 79 P. 673.

(a) To constitute actionable negligence, where the alleged wrong is not willful and intentional, three essential elements are necessary: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure of the defendant to perform that duty; and (3) injury to the plaintiff resulting from such failure.

(b) Where an employé is injured, either by the willful or intentional act of the employer, or the failure to exercise ordinary care on the part of such employer, such employé or his representative may plead both in the alternative in one count.

Certain instructions examined held to be erroneous.

Error from District Court, Garfield County; M. C. Garber, Judge.

Action by Mrs. Frances E. McIntire against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.

C. O. Blake, H. B. Low, W. I. Gilbert, and Robberts & Curran, for plaintiff in error.

A. A. Graham and Parker & Simons, for defendant in error.

WILLIAMS J.

This proceeding in error is to review the judgment of the lower court in an action wherein the defendant in error, as plaintiff, sued the plaintiff in error, as defendant, for damages alleged to have been sustained on account of the death of her husband, Edwin C. McIntire, at Wichita, Kan., on the 5th day of September, 1907.

The following questions were raised: (1) The lower court was without jurisdiction; (2) a cause of action not stated; and (3) error in giving certain instructions.

1. Counsel for plaintiff in error in their brief say: "The statutes of Oklahoma and Kansas, providing for recoveries of damages for injuries resulting from the wrongful act or omission of another, are the same, the Oklahoma statute having been adopted from Kansas; and, if this action was for damages resulting from a common-law tort, there can be no question but that this court might properly, in a spirit of comity, entertain jurisdiction. But the plaintiff is not seeking to enforce such a right. The recovery is predicated upon another Kansas statute, also in derogation of the common law, which was in force in Oklahoma at the time the alleged rights were created in Kansas."

In Herrick v. Minneapolis & St. Louis Ry. Co., 31 Minn. 11, 16 N.W. 413, 47 Am. Rep. 771, it is said: "The general rule is that actions for personal torts are transitory in their nature, and may be brought wherever the wrongdoer may be found, and jurisdiction of his person can be obtained. As to torts which give a right of action at common law, this rule has never been questioned, and we do not see why the transitory character of the action, or the jurisdiction of the courts of another state to entertain it, can in any manner be affected by the question whether the right of action is statutory or common law. In actions ex contractu, there is no such distinction, and there is no good reason why any different rule should be applied in actions ex delicto. Whenever, by either common law or statute, a right of action has become fixed and a legal liability incurred, that liability, if the action be transitory, may be enforced, and the right of action pursued, in the courts of any state which can obtain jurisdiction of the defendant, provided it is not against the public policy of the laws of the state where it is sought to be enforced. Of course, statutes that are criminal or penal in their nature will only be enforced in the state which enacted them; but the statute under which this action is brought is neither, being purely one for the reparation of a civil injury. The statute of another state has, of course, no extraterritorial force, but rights acquired under it will always, in comity, be enforced, if not against the public policy of the laws of the former. In such cases the law of the place where the right was acquired, or the liability was incurred, will govern as to the right of action; while all that pertains merely to the remedy will be controlled by the law of the state where the action is brought. And we think the principle is the same whether the right of action be ex contractu or ex delicto." See, also, Dennick v. Railroad Co., 103 U.S. 11, 26 L.Ed. 439; Leonard v. Steam Nav. Co., 84 N.Y. 48, 38 Am. Rep. 491; Chicago, etc., R. Co. v. Doyle, 60 Miss. 977, 8 Am. & Eng. Ry. Cas. 171; Nashville & C. R. Co. v. Sprayberry, 8 Baxt. (Tenn.) 341, 35 Am. Rep. 705; Selma, etc., R. Co. v. Lacy, 43 Ga. 461; Id., 49 Ga. 106.

In Knight v. West Jersey Railroad Co., 108 Pa. 250, 56 Am. Rep. 200, it is said: "At common law purely personal wrongs, as respects civil remedy, died with the person who received them; but, whether just or unjust, that rule has been abrogated to a great extent by the statutes, both in this country and in England. In the earlier period of such legislation, there was a tendency to adopt the principle that, 'where a new right of action is given by the statute for that for which no action would lie at common law, such action can only be brought in the state or county whose statute gives the right, and for the wrongs then suffered.' *** The general rule is, as to personal torts which give a right of action at common law, that the action may be brought wherever the wrongdoer may be found, and jurisdiction of his person may be obtained. In actions ex contractu, their transitory character, and the jurisdiction of the courts to entertain them, are the same, whether the right be given by statute or the common law. Like rule has recently been applied in Minnesota, in an action ex delicto; the court remarking that where, either by common law or statute, a right of action has become fixed and legal liability incurred, if transitory, it may be enforced in the courts of any state which can obtain jurisdiction of the defendant, provided it is not against the public policy of the laws of the state where it is sought to be enforced. The statute of another state has no extraterritorial force, but rights under it will always, in comity, be enforced, if not against the policy of the laws of the forum. In such cases the law of the place where the right was required, or the liability was incurred, will govern as to the right of action; while all that pertains merely to the remedy will be controlled by the law of the state where the action is brought."

Herrick v. Railway Co., supra, has been approved by the Supreme Court of the United States. Railroad Co. v. Babcock, 154 U.S. 190, 14 S.Ct. 978, 38 L.Ed. 958. Jurisdiction of this cause seems to have been properly entertained by the courts of this state.

2. The petition alleges:

"(a) On or about said 5th day of September, 1907, said Edwin C. McIntire, deceased, while in the employ and pay of said defendant, as car inspector and repairer, in the city of Wichita, aforesaid, and while in the proper performance and discharge of his duties as such car inspector and repairer, and without fault on his part, received, through the carelessness and negligence of said defendant, its officers, agents, servants, and employés, other than said Edwin C. McIntire, deceased, certain bodily injuries which, on the same day, resulted in his death. That said carelessness and negligence on the part of said defendant, causing injury to and the death of said deceased, as hereinbefore complained of, consisted in this, to wit:
"(b) In the careless and negligent switching, handling, and moving, by a switch crew of said defendant, in charge of a foreman thereof, in the yards of the defendant in said city of Wichita, of a car upon and along a track in such a manner as to strike against other cars then and there standing upon such track, and upon and between which the said Edwin C. McIntire, deceased, was at the time rightfully and properly working in the capacity of his employment and the line of his duty as car inspector and repairer, as aforesaid, without notice or warning to said deceased, and at a time and place and under circumstances when and where the said deceased did not know, and had no reason to anticipate, that said car would be switched, handled, or moved, but, on the other hand, had good and valid reasons to know and believe that said car would not, at that time, be switched, handled, or moved, and when and where and under the circumstances said switch crew and the foreman in charge thereof knew, or, in the exercise of ordinary care, should have known, that said deceased was at the time working."

Whilst the common-law forms or fictions in pleadings have been abolished...

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