Demattei v. Missouri-Kansas-Texas R. Co.

• Decision Date: 04 May 1940
• Docket Number: 36267
• Citation: 139 S.W.2d 504,345 Mo. 1136
• Parties: John Demattei, Administrator of the Estate of Joseph Demattei, Appellant, v. Missouri-Kansas-Texas Railroad Company, a Corporation
• Court: Missouri Supreme Court

139 S.W.2d 504

345 Mo. 1136

John Demattei, Administrator of the Estate of Joseph Demattei, Appellant, v. Missouri-Kansas-Texas Railroad Company, a Corporation

No. 36267

Supreme Court of Missouri

May 4, 1940

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge.

Reversed and remanded.

Mason & Flynn, I. R. Goodman and W. L. Mason, Jr. for appellant.

(1) The executor or administrator bringing suit under a statute for death by wrongful act does not bring such suit in his character as personal representative, administering the assets of an estate. He brings the suit as a statutory trustee of an express trust for the benefit of certain persons designated by the statute. Therefore, the rule and the reason for the rule forbidding a foreign administrator to institute suit outside of the State of his appointment do not apply. Willgues v. Railroad Co., 298 S.W. 817; Stoeckman v. Ry. Co., 15 Mo.App. 503; Jones v Railroad Co., 178 Mo. 541; Wells v. Davis, 303 Mo. 388; Shaw v. Ry. Co., 282 S.W. 418; Byram v Ry. Co., 29 S.W.2d 380; Robertson v. Chicago, etc., Ry. Co., 99 S.W. 433; Memphis & Cincinnati Packet Co. v. Pikey, 142 Ind. 304; Wabash, St. L. & Pac. Ry. Co. v. Shacklet, 105 Ill. 382; Pearson v. Norfolk & W. Ry. Co., 286 F. 429; Anderson v. L. & N. Ry. Co., 210 F. 694; Dennick v. Central Ry. Co., 103 U.S. 11, 26 L.Ed. 439; Ghilain v. Couture, 146 A. 395, 65 A. L. R. 553, note 563-573; Pearson v. Norfolk & W. Ry. Co., 286 F. 429; Robertson v. Chicago, St. P. M. & O. Ry. Co., 122 Wis. 66, 66 L. R. A. 919, 106 Am. St. Rep. 925, 99 N.W. 433; Hodges v. Kimball, 34 C. C. A. 103, 63 U.S. App. 688, 91 F. 845; Knight v. Moline, E. M. & W. Ry. Co., 160 Iowa 160, 14 N.W. 839; Wilson v. Tootle, 55 F. 211; McCarty v. New York, L. E. & W. Ry. Co., 62 F. 437; Florida, C. & P. Railroad Co. v. Sullivan, 61 L. R. A. 410, 57 C. C. A. 167, 120 F. 799; Dodge v. North Hudson, 188 F. 489; Boulden v. Pennsylvania Ry. Co., 205 Pa. 264, 54 A. 906; Wabash, St. L. & P. Ry. Co. v. Shacklet, 105 Ill. 364, 44 Am. Rep. 791; Purple v. Whithed, 49 Vt. 189; Midland Valley Railroad Co. v. Lemoyne, 104 Ark. 337, 148 S.W. 654; 8 R. C. L. 48. (2) Section 699, Revised Statutes 1929, 2 Mo. Ann. Statutes, page 696, provides that: "An executor or administrator, a trustee under an express trust, or a person expressly authorized by statute, may sue in his own name. . . ." The plaintiff, therefore, being the duly appointed domiciliary administrator of Joseph Demattei, deceased, and as such constituted an express trustee, by virtue of the provisions of our death by wrongful act statute (Sec. 3262, R. S. 1929) and authorized by that statute as well as by Section 699, Revised Statutes 1929, is authorized to maintain this suit. Tittman v. Thornton, 107 Mo. 500; Mosman v. Bender, 80 Mo. 579; Miller v. Hoover, 121 Mo.App. 568.

Everett Paul Griffin and Carl S. Hoffman for respondent.

(1) The action of the court in sustaining the demurrer was correct. The petition showed on its face that the cause of action, if any, arose in Missouri, under the law of Missouri, and that suit was brought by a foreign administrator. (a) At common law there was no right of action for wrongful death. Hence suit could only be brought under Section 3262, Revised Statutes 1929. Clark v. K. C. St. L. & Chicago Railroad, 219 Mo. 524; Wells v. Davis, 303 Mo. 388. (b) Prior to the passage of Section 706, Revised Statutes 1929, a foreign administrator could under no circumstances maintain a suit in Missouri. Emmons v. Gordon, 140 Mo. 498; Casey v. Hoover, 197 Mo. 62; Lee v. Mo. Pac. Ry. Co., 195 Mo. 400; Schueren v. Railroad Co., 192 S.W. 965; McGinnis v. Mo. Car & Foundry Co., 174 Mo. 225; Wells v. Davis, 303 Mo. 388; 17 C. J. 1266. (c) Section 706, Revised Statutes 1929, only permits a foreign administrator to sue on causes of action arising under the law of a foreign State or territory. Sec. 706, R. S. 1929; Bank v. Dowdy, 175 Mo.App. 478; Casey v. Hoover, 197 Mo. 62; Burg v. Knox, 334 Mo. 336. (d) The administrator provided for in Section 3262, Revised Statutes 1929, is one appointed by a Missouri court. At the time of its passage there was no statute permitting suit by a foreign administrator. Hall v. Southern Ry. Co., 62 S.E. 899; Vance v. Southern Ry. Co., 50 S.E. 860.

OPINION

Tipton, J.

This is a suit for wrongful death of Joseph Demattei, age twenty-two, under Section 3262, Revised Statutes 1929. The petition alleges that his death was caused by the negligent operation of one of respondent's locomotives in Callaway County, Missouri; that the deceased was a resident of Franklin County, Illinois; that the plaintiff was duly appointed administrator by the Probate Court of Franklin County, Illinois; and that the deceased was never married, and left no descendents surviving him, but that he was survived by a dependent father, brothers and sisters. The trial court sustained a demurrer to the petition upon the ground that the plaintiff does not have legal capacity to sue. Appellant declined to plead further and final judgment was entered dismissing the petition. From this judgment the appellant has duly appealed.

The sole question for our determination is: Can a non-resident administrator maintain an action in the courts of this State for wrongful death of a non-resident where the death occurred in this State under such circumstances as to come within the provisions of Section 3262, Revised Statutes 1929?

Respondent contends this question must be answered in the negative because the administrator's powers as such do not extend beyond the boundaries of the State in which his letters of administration are granted. In other words, letters of administration have no extraterritorial force, and, therefore, the appellant could sue only in the courts of the State of Illinois. We have so ruled in cases applying to the property belonging to his intestate (see Emmons v. Gordon, 140 Mo. 490, 41 S.W. 998, 62 Am. St. Rep. 734), but we have never ruled the precise question before us. Respondent also contends that the facts in this case do not come within the provisions of Section 706, Revised Statutes 1929, where the right of a foreign administrator to maintain an action in this State is limited solely to cases where the cause of action has accrued under the laws of another State, and since the cause of action accrued in this State, the appellant does not derive any authority under this section to maintain this action.

There was no right of action for wrongful death at common law. [Clark v. K. C., St. L. & Chicago Railroad, 219 Mo. 524, 118 S.W. 40.] Such a cause of action is purely a creature of statute. "The statute gives the cause of action and points out the persons who may sue, and they, and they alone, can sue, and they must sue within the time prescribed by the statute." [Oates v. Union Pac. Ry. Co., 104 Mo. 514, l. c. 518, 16 S.W. 487, 24 Am. St. Rep. 348. See also Barker v. Hannibal & St. L. Railroad, 91 Mo. 86, 14 S.W. 280; Barron v. Mo. Lead & Zinc Co., 172 Mo. 228, 72 S.W. 534; Packard v. Hannibal & St. J. Railroad, 181 Mo. 421, 80 S.W. 951; Hennessy v. Bavarian Brewing Co., 145 Mo. 104, 46 S.W. 966, 41 L. R. A. 385, 68 Am. St. Rep. 554; Clark v. K. C., St. L. & Chicago Railroad, supra.]

We must, therefor, look to the provisions of Section 3262, supra, to see who may maintain this action and for whose benefit the action may be maintained. The fourth condition under which an action may be maintained is as follows. "If there be no husband, wife, minor child or minor children . . . then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent. . . ."

Respondent would have us read into this section the word domestic before the word administrator. This we cannot do; the Legislature saw fit to use the word administrator and we cannot interlope the word domestic before it. That is a function of the Legislature. We have no right to usurp its functions. The meaning is plain and there is no room for construction that would have us read into this section the word domestic. The appellant is the only administrator of the deceased in existence, and to construe the statute to hold that he cannot maintain this action would be in direct contradiction of the words of the statute. [Dennick v. Central Railroad Co., 103 U.S. 11, 26 L.Ed. 439.] Should we uphold respondent's contention by reading into the statute the word domestic before the word administrator, or executor, it would be just as logical to read into the statute that the deceased must be a resident of the State of Missouri before such action may be maintained. We think the language here used is broad enough to include either a foreign or domestic administrator.

"The general rule is that an administrator cannot sue in his representative capacity in a state other than that which he was appointed, in the absence of an authorizing statute in the state where he sues. This, under the principle that letters of administration have no extraterritorial force, and upon the other principal that to permit the foreign administrator to sue might result in the exhaustion or diversion of local assets of the estate to the injury of local creditors. It is held everywhere, however, that a cause of action of the class here under consideration is not assets of the estate of the deceased, is not subject to the claims of creditors of the deceased, and is for the exclusive benefit of the persons designated as beneficiaries under the law which gives the right. [Jones v. K. C. Ry. Co., 178 Mo. l. c. 541; Miller v. Hoover, 121 Mo.App 568; Kelly v. Railroad, 141 Mo.App. 490; Voris v. Railroad, 172 Mo.App. 125; Dennick v. Railroad, 103 U.S....