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.
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...
