Deister v. Kansas City Northwestern Railway Co.

• Decision Date: 29 May 1917
• Parties: FRANK DEISTER v. KANSAS CITY NORTHWESTERN RAILWAY COMPANY and MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

195 S.W. 499

271 Mo. 63

FRANK DEISTER v. KANSAS CITY NORTHWESTERN RAILWAY COMPANY and MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

May 29, 1917

Appeal from Jackson Circuit Court. -- Hon. T. J. Seehorn, Judge.

Reversed and remanded.

Martin L. Clardy, Edward J. White and Thomas Hackney for appellants.

(1) The court erred in striking out all that portion of the defendant's amended answer to the third amended petition setting up the consolidation of the defendant corporations in August, 1909; the Kansas statute requiring the revival of the action within one year against the consolidated corporation the Kansas decisions holding that said revival was a condition upon the right to sue and not a mere limitation upon the remedy and of the plea of res adjudicata, in said amended answer, and the final decision of the district court of Wyandotte County, Kansas, in favor of defendants, upon the same cause of action sued on in this action. (2) The court erred in overruling the defendant's demurrer at the close of the plantiff's case and in holding that the plaintiff under the facts shown by his evidence, was entitled to recover under the rule res ipsa loquitur, the facts establishing that the plaintiff and his associates were handling the door in question at the time of the injury, and that the same was not under the control of the defendant or its employees.

Guthrie, Gamble & Street for respondents.

(1) The Kansas procedure acts do not affect personal injury litigation in Missouri. Husted v. Mo. P. Ry. Co., 143 Mo.App. 623; Lessenden v. Mo. P. Ry. Co., 238 Mo. 347. (2) Plaintiff's right to prosecute this cause was in no manner affected by the Kansas revivor statutes. Baker v. Crandall, 28 Mo. 590; Crawford v. Railway, 171 Mo. 77; Berkley v. Tootle, 62 Kan. 701; Reaves v. Long, 63 Kan. 700; Steinbach v. Murphy, 70 Kan. 487; Whipple v. Union Pacific, 28 Kan. 340; Cunkle v. Railroad, 54 Kan. 149. (3) The rule of res ipsa loquitur was not excluded in its application by any act of the plaintiff or his associates. Cothron v. Packing Co., 98 Mo.App. 343; Jones v. Ry. Co., 135 Mo.App. 468. (4) The court did not err in refusing defendants' instruction as to the burden of proof. Cramer v. Nelson, 128 Mo.App. 399; Clarke v. Kitchen, 52 Mo. 316; Milling Co. v. Walsh, 37 Mo.App. 574; Fletcher v. Mfg. Co., 35 Mo.App. 321, 329; Mackin v. Railway, 45 Mo.App. 87.

ROY, C. White, C., concurs in result.

OPINION

ROY, C.

Plaintiff recovered judgment for $ 10,000 for personal injuries. He made a voluntary remittitur of $ 2500, and judgment was thereupon entered for $ 7500. Defendant appealed. The appeal was allowed to the Kansas City Court of Appeals, whence it was certified here on the ground that constitutional questions were involved. This court overruled appellant's motion to retransfer to the Kansas City Court of Appeals.

This suit was begun October 28, 1908, and on December 24, 1909, the third amended petition herein was filed. It charged the negligence of the defendants and the consequent injury to the plaintiff in the following language:

"That on or about the 31st day of October, 1906, the defendants furnished to the plaintiff, then a cattle shipper, a freight cattle car at Piper, Kansas, to be used by the plaintiff in the shipment of a load of cattle from said station, pursuant to an arrangement between plaintiff and defendant for the shipment thereof; that pursuant to the custom and practice and the necessities of the situation it became and was necessary for the plaintiff to open the door of said cattle car, which plaintiff, with the assistance of others, proceeded to do in the usual and proper manner therefor, when, by reason of the negligence of the defendants, said door fell from its fastenings and support down to, upon and against the plaintiff, then a stout hearty man of about fifty-four years of age, bearing the plaintiff to the ground and injuring the plaintiff, as the direct result of the negligence of said defendant, in the following respects."

The Missouri Pacific Railway Company on October 7, 1911, filed its separate amended answer herein. It contained a general denial and a plea of contributory negligence; also the following:

"Further answering, the defendant states that said alleged injuries to the plaintiff are alleged to have been received on the 31st day of October, 1906, in the State of Kansas, as a result of the negligence of the Missouri Pacific Railway Company. That said Missouri Pacific Railway Company, a corporation, organized and existing under the laws of the State of Kansas, was on the 6th day of August, 1909, duly and legally incorporated and consolidated with eleven other corporations, and the contract and articles of consolidation were thereafter, and on the 9th day of August, 1909, duly filed with the Secretary of State of the State of Kansas, as provided by law and by the contract and articles of consolidation, said consolidated corporation adopted the name of the Missouri Pacific Railway Company as its name

"That under the law of the State of Kansas, on the date of said consolidation of said Missouri Pacific Railway Company, the said Missouri Pacific Railway Company was and became a defunct corporation and in order to prosecute an action against its successor, the said action must have been revived within one year from said 9th day of August, 1909.

"That by sections 6025, 6026 and 6027, Revised Statutes of Kansas of 1909, it was provided:

"'Sec. 6025. Order against representative or successor of defendant must be made within one year (430). An order to revive an action against the representative or successor of defendant shall not be made without the consent of such representatives or successor, unless in one year from the time it could have been first made.

"'Sec. 6026. Order in favor of representatives or successors of plaintiff not to be made after one year; where both parties have died (431). An order to revive an action in the names of the representatives or successors of a plaintiff may be made forthwith, but shall not be made without the consent of the defendant after the expiration of one year from the time the order might have been first made, but where the defendant shall also have died, or his powers have ceased in the meantime, the order of revivor on both sides may be made in the period limited in the last section.

"'Sec. 6027. Action that cannot be revived, to be dismissed (423). When it appears to the court by affidavit that either party to an action has been dead for a period so long that the action cannot be revived in the names of his representatives or successors without the consent of both parties, or where a party sues or is sued as a personal representative that his powers have ceased, the court shall order the action to be dismissed at the costs of the plaintiff.'

"That more than one year has elapsed since the defendant, against whom said cause of action, if any, arose, was consolidated with eleven other railroad corporations and no motion was filed within one year from said date of said consolidation and filing the articles of said consolidation with the Secretary of State of the State of Kansas, to substitute the successor of said railroad company or to revive the cause of action against its successor and the successor of said company has not at any time consented to a revivor or a substitution in said action.

"That by virtue of the foregoing facts, plaintiff's cause of action has ceased to exist against the successors of said Missouri Pacific Railway Company in the State of Kansas and has no right of action in the State of Missouri.

"Further answering, the defendant states that on the 28th day of October, 1908, the plaintiff commenced a cause of action against this defendant in the district court of Wyandotte County, Kansas, No. 21324, on the same cause of action as that involved in the suit against this defendant. That said action was not revived against the consolidated company, succeeding the defendant, Missouri Pacific Railway Company, in said action, and on the 1st day of April, 1911, said district court of Wyandotte County, Kansas, with full jurisdiction over the person of the defendant and the cause of action set up in the plaintiff's petition in this court, ordered and decreed that the plaintiff's cause of action should be forever abated and that no appeal was taken from said decision of said district court of Wyandotte County, Kansas, and the same is a final adjudication against the right of the plaintiff to maintain this action at this time."

On motion of plaintiff the quoted portion of that answer was stricken out, and defendants excepted to such action of the court. On June 20, 1912, the last named defendant filed its second separate amended answer herein, containing a general denial and a plea of contributory negligence, also this:

"Further answering, defendant says that there is a misjoinder of parties defendant.

"Further answering, this defendant states that it had a complete defense to the plaintiff's cause of action under the law of Kansas, where the plaintiff's cause of action arose and that in filing said suit against this defendant in Missouri, this defendant is deprived of said defense and is therefore deprived of its property without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States.

"Further answering, this defendant states that it had no corporate existence until the month of August, 1909, and according to the laws of Kansas it was not at that time legally liable under the statutes and decisions of the State of Kansas, for the cause of action set up in the plaintiff's petition which resulted from the alleged wrongful act of...