Christner v. C., R.I. & Pac. Ry. Co.

• Decision Date: 06 November 1933
• Docket Number: No. 17872.,17872.
• Citation: 64 S.W.2d 752
• Court: Missouri Court of Appeals
• Parties: EMMA JEAN CHRISTNER, RESPONDENT, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, APPELLANT.

64 S.W.2d 752

EMMA JEAN CHRISTNER, RESPONDENT, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, APPELLANT.

No. 17872.

Kansas City Court of Appeals. Missouri.

November 6, 1933.

Appeal from Circuit Court of Platte County. — Hon. Edward G. Robison, Judge.

REVERSED AND REMANDED.

Kennard & Gresham for respondent.

Luther Burns, Henry S. Conrad, L.E. Durham, Hale Houts and I.M. Lee for appellant.

BLAND, J.

This is a suit for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $2400, and defendant has appealed.

The facts show that plaintiff was injured on September 4, 1932, while driving westwardly in her automobile upon a street in the city of Hutchinson, Kansas, when a northbound train of the defendant struck the car. The automobile had but one seat and plaintiff was on the left-hand side of it. With her were two women companions, Mrs. Dick and Mrs. Meyer. Mrs. Dick was on the seat to the right and Mrs. Meyer in the middle.

Plaintiff testified that the collision occurred about two o'clock in the afternoon of the day in question; that she was traveling at a speed of about fifteen miles per hour; that as she approached the track she looked both ways and when about twenty-five or thirty feet therefrom she saw the train approaching from the south; that it was then about a block or 800 to 1000 feet away; that upon seeing the train she slowed the car down to about ten miles per hour; that she then concluded that she could cross ahead of the train with safety and increased the speed of her car to about twelve miles per hour; that as the front wheels reached the first rail she was traveling about twelve miles per hour.

Plaintiff further testified that when the front wheels of her car reached a point near the track she observed the train and she then realized that it was closer to her than she had thought; that Mrs. Dick urged her to stop and Mrs. Meyer urged her to go ahead; that the witness concluded to go on across the track and in order to increase her speed for that purpose, she pushed the clutch pedal down, changing the car, a Model "T" Ford, from high to low gear and at the same time stepped on the accelerator; that these operations had the effect of choking and killing the engine and the car came to a dead stop with the front wheels between the two rails and it was there struck by the train; that when she "killed" her engine and the car stopped on the track the train was about 350 to 400 feet away.

Both Mrs. Dick and Mrs. Meyer succeeded in getting out of the car before it was struck, the former getting into the clear but the latter was struck by the car being pushed against her by the train. Mrs. Meyer "got out just about the instant it (the car) was struck." "She just barely got her foot off the running board." Plaintiff did not alight from the car before it was struck by the train.

The engineer testified that he saw the automobile when it was twenty to twenty-five feet from the crossing and at this time his engine was about twenty-five to sixty feet south therefrom; that about this time the car stopped and then started up; that when he saw that it was going upon the track he opened the whistle throttle, applied the brakes and made the best stop that he could; that the engine of his train was about fifteen feet from the car when the latter stopped; that he stopped the train within 240 feet; that the train traveled at a rate of speed of from six to ten miles per hour after the car stopped on the track.

It was agreed by both parties at the trial that the Kansas law, both statutory and as announced in the decisions of the courts of that State, should be considered as the law of the case. Among other defenses pleaded in the answer was the bar of the two-year Statute of Limitations of the State of Kansas. The injury occurred on September 4, 1929, and this suit was not brought until July 6, 1932. No suit was ever brought in the State of Kansas, but a suit was instituted by the plaintiff in this State in the month of February, 1932. That suit was removed to the Federal court where plaintiff took a nonsuit on June 30, 1932, then followed the bringing of the present suit on July 6, 1932.

Plaintiff admits that, by reason of Section 869, Revised Statutes 1929, the two-year Statute of Limitations of the State of Kansas applies to this action, but she claims that the present suit was brought within time on account of the provisions of section 874.

Section 869 provides as follows:

"Whenever a cause of action has been fully barred by the laws of the State, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this State."

Section 874 provides, in part, as follows:

"If any action shall have been commenced within the times respectively prescribed in articles 8 and 9 of this chapter, and the plaintiff therein suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or, after a judgment for him, the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered or such judgment arrested or reversed."

There is a statute in the State of Kansas somewhat similar to our section 874, which tolls the running of the general statute of limitations in that State for one year, under such circumstances. [See Section 60-311, R.S. Kansas, 1923.]

It is claimed by the defendant that this suit is barred by the Kansas general Statute of Limitations. In this connection defendant states its position to be "that the Kansas two-year Statute of Limitations was not tolled by the former suit and nonsuit in Missouri; that section 60-311 applies only to prior timely actions brought in the State of Kansas, and the similar Missouri tolling statute, Section 874, Revised Statutes Missouri, 1929, has no application to the Kansas Statute of Limitations and is not effective to toll the Kansas Statute of Limitations or permit suit in Missouri upon a Kansas cause of action barred in Kansas and, therefore, barred in Missouri under section 986, Revised Statutes Missouri, 1929."

In reference to section 869 the Supreme Court said in Farthing v. Sams, 296 Mo. 442, 451:

"Undoubtedly the weight of authority is to the effect that Section 1324 (now 869) imposes additional limitation upon the right to sue and does not enlarge the right to sue beyond the limitation of our own statute. By its very terms it effects only the remedy. That is, where the remedy is denied the suitor in the state where his cause of action arose, it is denied to him here. If it is not denied to him in the state where the cause arose it may be denied to him here by our Statute of Limitations."

The general rule is that the Statute of Limitations has no extra territorial effect but that the law of the forum governing limitations applies. Section 869, strictly speaking, does not change this rule but, in effect, makes the Statutes of Limitations of Kansas the law of Missouri by providing that the Statute of Limitations of the state where the cause of action accrued shall govern to the extent mentioned in the Farthing case. Thus it will be seen that, in effect, a special Statute of Limitations is provided for in section 869, applicable only to causes of action arising in foreign states. In other words, section 869 does not make the Statute of Limitations of a foreign state that to be applied in this State, but makes that statute the statute of Missouri. This is, perhaps, a somewhat technical construction of the effect of section 869, but it has a bearing upon the controversy now before us. We say this for the reason, that if, after all, it is the Missouri Statute of Limitations that we are applying, though it be the period which the foreign state prescribes for its running, then it would appear that when jurisdiction once attaches in our State section 874 becomes applicable. When jurisdiction of the courts of this State attaches the rules of procedure are those of the forum and not that of the foreign state where the cause of action arose. Consequently, our courts must necessarily ascertain the rights of the parties under our own statute in accordance with our own laws and procedure and not in accordance with those of the foreign state involved.

We find that section 869 is included in the provisions of Article 9, Chapter 5, Revised Statutes 1929. We also find section 874 to be included in the same article and chapter. Section 874 specifically provides that "if any action shall have been commenced within the times respectively prescribed in section 8 and 9 of this chapter and the plaintiff suffered a nonsuit ... such plaintiff may commence a new action from time to time within one year after such nonsuit suffered." Section 869, in effect, makes the general Statute of Limitations of the State of Kansas the statute of Missouri for a cause of action arising in the State of Kansas and section 874, by said reference to article 9, chapter 5, makes the latter section applicable to a cause of action mentioned in section 869 as originating in another state, territory or country.

Our theory of the applicability of section 874 is upheld in Wright v. N.Y. Underwriters' Ins. Co., 1 Fed. Sup., p. 663, and in Knight v. Ry. Co., 160 Iowa, 160. The case of McCoy v. Railroad, 134 Mo. App. 622, decided by this court, insofar as it is inconsistent with our present holding, is overruled.

It is insisted that defendant's instruction in the nature of a demurrer to the evidence should have been given. The cause was submitted by the plaintiff upon the last chance doctrine of the State of Kansas, which is somewhat different from the Missouri humanitarian doctrine. Recognizing this, the instruction submits that the duty to plaintiff on the part of the operator of the train first arose after the automobile stopped upon the track and she was unable to extricate herself from the danger.

Defendant...