Farrar v. St. Louis & S. F. R. Co.

• Citation: 149 Mo. App. 188,130 S.W. 373
• Court: Court of Appeal of Missouri (US)
• Decision Date: 07 July 1910
• Parties: FARRAR v. ST. LOUIS & S. F. R. CO.

130 S.W. 373

149 Mo. App. 188

FARRAR v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

July 7, 1910.

1. CONSTITUTIONAL LAW (§ 22) — CONSTITUTION OF NEWLY ADMITTED STATE — TIME OF TAKING EFFECT.

The enabling act, under which the territory of Oklahoma became a state (Act June 16, 1906, c. 3335, 34 Stat. 267), provided that, in case a Constitution and state government were formed in compliance with such act, the convention forming the same should provide by ordinance for submitting such Constitution to the people for ratification, and that if the Constitution and government of the proposed state were republican in form, and if the provisions of the enabling act were complied with in the formation thereof, it should be the duty of the President of the United States, within 20 days from the receipt of the certificate of the result of such election and a copy of the Constitution, to issue his proclamation announcing the result of said election, "and thereupon the proposed state of Oklahoma shall be deemed admitted by Congress into the Union under and by virtue of this act on an equal footing with the original states." The Constitution was adopted September 27, 1907, and the proclamation of the President was issued November 17, 1907 (35 Stat. 2160). The proclamation declared the Indian Territory a part of the newly organized state. Plaintiff, a railroad employé, was injured in Indian Territory on November 2, 1907. Held, that the accident occurred before the territory of Oklahoma became a state, and therefore the common-law rule as to the liability of a master for an accident resulting from the negligence of a fellow servant applied, and not the provision in the Constitution of Oklahoma (article 9, § 36) abrogating the common-law rule as to employés of railroad companies.

2. CONSTITUTIONAL LAW (§ 22) — ADOPTION OF CONSTITUTION — TIME OF TAKING EFFECT.

The general rule that Constitutions and constitutional amendments take effect upon their ratification by the people, unless otherwise provided in the instrument itself or the resolutions submitting them, applies to sovereign states possessing the power to make and unmake Constitutions, but has no application to territories, as they do not possess the power within themselves to initiate a separate form of government.

3. STATES (§ 9) — ADMISSION OF TERRITORIES AS STATES.

Territories are under the absolute control of Congress and can only become states and form for themselves laws or Constitutions in the manner pointed out in the enabling act.

4. MASTER AND SERVANT (§ 160) — INJURIES TO SERVANT — FELLOW SERVANT — WHAT LAW GOVERNS.

Plaintiff, employed as a sectionhand in Indian Territory, was injured while holding a rail, which, under the direction of the section foreman, the men were attempting to cut in two. The chisel with which the cutting was done was held by the section foreman, and it was his negligence in placing the chisel before a blow was struck upon it that caused the injury to plaintiff. Held, that though, under the law of Missouri, the foreman was a vice principal of the company, and the company would have been liable for the injuries from his incapacity or carelessness, whether such incapacity or carelessness was known to the principal, under the federal law which governed in the Indian Territory at the time of the accident, the foreman was a fellow servant, and the company would not have been liable, and therefore, in an action brought in Missouri, plaintiff has no cause of action.

5. COURTS (§ 8) — JURISDICTION — ACTION UNDER LAWS OF OTHER STATE.

Where a cause of action which accrues in one state is brought in another state, plaintiff cannot recover unless he shows that he had a cause of action which the courts of the state in which the cause of action accrued under their view of the law at the time of the accident would enforce, and, if plaintiff has no cause of action which the courts of the state in which the right accrued would recognize, he can acquire none by bringing the suit in a state, the courts of which would recognize the right of action if accruing in their state.

6. COURTS (§ 372) — UNITED STATES COURTS — STATE LAWS AS RULES OF DECISION.

The federal courts uniformly hold that, where the relation of master and servant is unaffected by statute, the question of the responsibility of the master for injuries caused to or by his servants is one of general law in regard to which the courts of the United States are not bound to follow the state law.

7. CONSTITUTIONAL LAW (§ 70) — DISTRIBUTION OF POWERS — ENCROACHMENT ON LEGISLATURE.

The question as to what is the best system of compensation for workmen for injuries received from industrial accidents is one which rests primarily with the legislative branch of the government, and not with the judiciary.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by Walter Farrar against the St. Louis & San Francisco Railroad Company. Verdict was directed for defendant, and plaintiff appealed. Affirmed.

Livingston & Livingston, for appellant. W. F. Evans, W. J. Orr, and J. H. Orr, for respondent.

NIXON, P. J.

This was an action commenced in Howell county, Mo., for damages in the sum of $7,500 for personal injuries alleged to have been received by plaintiff by reason of the negligence of the defendant's servants. The answer set up a general denial, a plea of contributory negligence, assumption of risk, and, lastly, that the plaintiff was injured in the Indian Territory, and that his right to recover damages and the defendant's liability for his injuries were dependent upon and to be determined by the law in force in the Indian Territory where the accident occurred. At the conclusion of all the evidence, the court sustained a demurrer and peremptorily instructed the jury to find the issues in favor of the defendant, which being done, and judgment entered thereon, the plaintiff appealed.

1. The accident happened at Sapulpa, Ind. T., on November 2, 1907. The proclamation of the President of the United States declaring the Indian Territory a part of the newly organized state of Oklahoma was issued on November 17, 1907 (35 Stat. 2160). One of the questions presented on this appeal is as to whether the Constitution and laws of the state of Oklahoma were in force on November 2, 1907. It has been agreed by the parties for the purposes of this trial that by Act Cong. May 2, 1890, c. 182, 26 Stat. 81, the common law of England was extended over the Indian Territory so far as the same was applicable and of a general nature, and all of the statutes of Parliament in aid of or to supply the defects of the common law made prior to the fourth year of James the First, so far as applicable, of a general nature, and not local to that kingdom. Section 250 of the Constitution of Oklahoma is as follows: "Section 250. — Common-Law Doctrine Abrogated. — Section 36. The common-law doctrine of the fellow servant, so far as it affects the liability of the master for injuries to his servant, resulting from the acts or omissions of any other servant, or servants, of the common master, is abrogated as to every employé of every railroad company. * * *" So that the adoption of the Constitution of Oklahoma abolished the common-law doctrine of fellow servant.

The Constitution was adopted on September 27, 1907, at a general election held by the people for that purpose. The question is as to when the Constitution became effective, and it is to be determined by the enabling act of Congress (Act June 16, 1906, c. 3335, 34 Stat. 267), which provides that, in case a Constitution and state government shall be formed in compliance with the provisions of such act, the convention forming the same shall provide by ordinance for submitting such Constitution to the people of such proposed state for ratification or rejection; and it was further provided in said enabling act that: "If the Constitution and government of said proposed state are republican in form, and if the provisions of this act have been complied with in the formation thereof, it shall be the duty of the President of the United States, within twenty days from the receipt of the certificate of the result of such election and the statements of the votes cast thereon and a copy of said Constitution, articles, propositions and ordinances, to issue his proclamation announcing the result of said election, and thereupon the proposed state of Oklahoma shall be deemed admitted by Congress into the Union under and by virtue of this act on an equal footing with the original states."

The accident therefore occurred at a date between the adoption of the Constitution and the date of the proclamation of the President, and the proposition does not seem open for difference of view that under the express terms of the enabling act, when the President issued his proclamation announcing the result of the vote and adoption of the Constitution, the proposed state of Oklahoma was admitted as a member of the Union of states, and that the territories then, and not until then, passed into the condition of statehood.

The general rule that Constitutions and constitutional amendments take effect upon their ratification by the people, unless otherwise provided in the instrument itself or the resolutions submitting them, applies to sovereign states possessing within themselves the power to make and unmake Constitutions, but can have no application to territories which, under our system of government, do not possess the power within themselves to initiate a separate form of government. The territories are under the absolute control of Congress, and can only become states and form for themselves laws or Constitutions in the manner pointed out in the enabling acts. Hence, the accident having happened on the 2d day of November, 1907, and the President's proclamation having been issued under the enabling act, on November 17, 1907, the defendant's liability is to be...