Diariotti v. Missouri Pac. Ry. Co.

• Decision Date: 17 November 1914
• Docket Number: No. 15052.,15052.
• Citation: 170 S.W. 865,262 Mo. 1
• Parties: DIARIOTTI v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

170 S.W. 865

262 Mo. 1

DIARIOTTI v. MISSOURI PAC. RY. CO.

No. 15052.

Supreme Court of Missouri.

November 17, 1914.

1. MASTER AND SERVANT (§ 252) — DEATH OF SERVANT — STATUTORY ACTION — REQUISITES — CONSTRUCTION OF STATUTE — NOTICE.

Code Civ. Proc. Kan. § 422 (Gen. St. 1901, § 4871), created an action for wrongful death, and Acts Kan. 1874, c. 93, provided that every railroad company should be liable for all damages to any employé in consequence of any negligence of its agents, etc.; Laws 1903, c. 393, § 1, adding a proviso that notice in writing of the "injury" so sustained, stating the time and place thereof, should be given by or on behalf "of the person injured" to such railroad company within 90 days after the occurrence of the accident. Held, that the provision requiring notice had no application to suits under the Kansas statute for damages resulting from death of an employé.

2. DEATH (§ 31) — PERSONS ENTITLED TO SUE — NONRESIDENTS — "RESIDENCE IN ANOTHER STATE."

Gen. St. Kan. 1901, § 4872 (Code Civ. Proc. § 422a), provides that where the residence of a party whose death has been caused by wrongful act is or has been at the time of his death in any other state or territory, or when, being a resident of Kansas, no personal representative is or has been appointed, an action for wrongful death may be brought by the widow. Held, that "residence in another state," as used in such act, means residence anywhere outside of Kansas, and hence includes an alien.

3. DEATH (§ 46) — WRONGFUL DEATH — ACTION BY WIDOW — PETITION.

Under such statute, an allegation in a petition for wrongful death, brought by the widow of an alien injured in Kansas, that decedent died in Missouri, was sufficient to show capacity of the widow to bring the suit, until defendant pleaded and proved that he left an unadministered estate in Kansas.

4. MASTER AND SERVANT (§ 286) — DEATH OF SERVANT — NEGLIGENCE — OPERATION OF HAND CARS.

Where decedent, a railroad trackman, was killed in a collision between hand cars on one of which he was riding to work, evidence held to require submission of defendant's negligence in the operation of such cars to the jury.

5. EVIDENCE (§ 383) — DOCUMENTARY EVIDENCE — REPORTS — CONCLUSIVENESS.

Where, in an action for death of a railroad trackman in a collision between certain hand cars, plaintiff introduced certain reports of the accident made to defendant by its employés under its rules to show notice of the accident to defendant, plaintiff was not bound by the statements of fact contained in such reports.

Woodson, J., dissenting.

En Banc. Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

Action by Giannoula Diariotti against the Missouri Pacific Railway Company. From a judgment awarding plaintiff a new trial, defendant appeals. Affirmed.

Martin L. Clardy, of St. Louis, and Edw. J. White, Elijah Robinson, and Martin Lyons, all of Kansas City, for appellant. Sparrow, Page & Rea and Conkling, Rea & Sparrow, all of Kansas City, for respondent.

BROWN, C.

The plaintiff is the widow of Peter K. Diariotti, who was killed while engaged in the service of the defendant near Hope station in the state of Kansas July 6, 1904. She commenced this suit in the circuit court for Jackson county, Mo., at Kansas City September 19, 1905, to recover damages sustained by reason of his death.

In her amended petition the plaintiff alleged that her husband was one of a number of laborers in defendant's employ working upon its track near the place where he was killed, and at the time of the accident was being carried by defendant on hand cars with other workmen to his place of work; that his death was the direct result of the negligence of the defendant and its foreman and assistant foreman in charge of the hand cars in placing upon the one upon which her husband was being carried too many men, in failing to maintain a reasonably safe distance between them, in running the cars at an unreasonable rate of speed, in failing to stop the car immediately following in time to avoid a collision, and in failing to provide proper and sufficient rules for the operation of its hand cars under such circumstance, all of which were alleged in violation of its duty. The plaintiff also pleaded as a foundation for her right to recover damages the following statutes from the General Statutes of Kansas of 1901:

"Sec. 4871 (Code Civ. Proc. § 422). When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.

"Sec. 4872 (Code Civ. Proc. § 422a). That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in section 422 of chapter 80, Laws of 1868, is or has been at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in said section 422 may be brought by the widow, or where there is no widow, by the next of kin of such deceased."

The petition stated that plaintiff resided in Missouri at the time of his death, and that no personal representative had been appointed.

The defendant pleaded and put in evidence section 1 of chapter 393 of the Laws of Kansas of 1903, entitled "An act to define the liability of railroad companies in certain cases" which is as follows:

"Section 1. That section 1, chapter 93 of the Laws of 1874, entitled, `An act to define the liability of railroad companies in certain cases,' approved February 26, 1874, be and the same is hereby amended so as to read as follows: Every railroad company organized or doing business in this state shall be liable for all 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 person sustaining such damage; provided, that notice in writing of the injury so sustained, stating the time and place thereof, shall have been given by or on behalf of the person injured to such railroad company within ninety days after the occurrence of the accident."

The evidence tended to show that the deceased was a Greek, who came to this country in March 1903, from his home in the little village of Lasteika in the province of Elis in that country, leaving his wife and four young children, the eldest eleven years old, in their former home, sending them money from his earnings for their support and declaring his intention to return to his home in four years. Upon his arrival in this country he landed in New York City, went to Chicago, where he remained 15 or 20 days; thence to St. Louis, where he remained a month, working in a factory; and from there he went to Sycamore, Kan., where he entered the service of the defendant railroad company, by which he was moved from place to place in the course of his employment, and at the time of his death he was working on defendant's railroad near Hope, Kan., where he lived in a boarding car. The accident happened while defendant was taking the gang with which he was employed to their place of work near Hope. There were between 30 and 40 in the gang who were being moved on four hand cars in charge of a foreman and his assistant. The deceased was riding on the third car, standing on the front end with his back to the front, pumping the car in the usual manner. The evidence tended to show that the fourth car hit the third one upon which the deceased was riding, knocking him off it, and the car then ran against him, breaking three of his dorsal vertebræ. He was sent to the defendant's hospital in St. Louis, where he died from the injury in about three weeks.

Under a rule of defendant three reports were made out for its information by employés present at the accident. These reports were produced on the trial. The court directed a verdict for the defendant, stating at the time that it was upon the ground that no notice had been given by or on behalf of the deceased within 90 days after the occurrence of the accident as provided by section 1, c. 393, of the Laws of Kansas 1903...