Gibson v. Chicago Great Western Railway Company

• Decision Date: 12 February 1910
• Parties: JAMES A. GIBSON, Appellant, v. CHICAGO GREAT WESTERN RAILWAY COMPANY
• Court: Missouri Supreme Court

125 S.W. 453

225 Mo. 473

JAMES A. GIBSON, Appellant, v. CHICAGO GREAT WESTERN RAILWAY COMPANY

Supreme Court of Missouri, Second Division

February 12, 1910

Appeal from Buchanan Circuit Court. -- Hon. Henry M. Ramey, Judge.

Affirmed.

Allen Gabbert & Mitchell, Mytton & Parkinson and Chas. C. Crow for appellant.

Plaintiff under the laws of Iowa referred to in the petition, had a cause of action against defendant which had fully accrued on the date mentioned in the petition, but under the law in effect in this State at that time there was no procedure provided by law for enforcing plaintiff's existing cause of action in this State, and to remedy this condition the State of Missouri passed an act found in Session Laws 1905 at page 95, which act provided plaintiff a remedy in this State for his then existing cause of action. As the Act of 1905 went solely to the remedy for existing and future causes of action, same was not retrospective in its operation within the meaning of the Constitution. The act related solely to a remedy and did not purport to affect, alter, change or enlarge plaintiff's rights under his then existing cause of action, and therefore the act is not retrospective. Clark v. Railroad, 219 Mo. 531; Bruns v. Crawford, 34 Mo. 330; Porter v. Mariner, 50 Mo. 364; Wellshear v. Kelley, 60 Mo. 343; In re Life Association of America, 91 Mo. 177; Drake v. Summerwell, 58 Mo.App. 246; Golden City v. Hall, 68 Mo.App. 627; Rosenfelt v. Railroad, 180 Mo. 554; State ex rel. v. Curr, 8 Mo.App. 125; Lovell v. Davis, 52 Mo.App. 342; Coe v. Ritter, 86 Mo. 277; State ex rel. v. Dolan, 93 Mo. 467; O'Bryan v. Alleb, 108 Mo. 227; Harrstick v. Gabriel, 200 Mo. 237; Frost v. Witter, 132 Cal. 421; 64 P. 705. For a statute to be objectionable under the provision prohibiting retrospective legislation it must impair existing vested rights. In this case the statute does not undertake to impair any right, create any cause of action, change or modify any existing cause of action, or change the rules of evidence or the rights of defendant in any manner, but merely provides a procedure by which plaintiff can in this State enforce an existing cause of action in exact accordance with his rights existing prior to the enactment of the law of 1905. State ex rel. v. Marion County, 128 Mo. 437; Vanata v. Johnson, 170 Mo. 269; Gladney v. Snyder, 172 Mo. 318; Rotsong v. Web, 35 Mo. 174; Barton County v. Walser, 47 Mo. 189; Kreyling v. O'Riley, 97 Mo.App. 384; Hope Mutual Insurance Co. v. Flynn, 38 Mo. 483.

Culver & Phillip for respondent.

That the presumption is that the common law is in force in Iowa, that by the common law no action accrues to the administrator, or any one else, for the wrongful death of a person, and that where a statute giving such cause of action exists it must be pleaded as any other fact, in an action based upon it in a foreign state, and that the failure to plead the statute renders the petition demurrable, is well established. Lee v. Railroad, 195 Mo. 415. Plaintiff has failed to plead any statute of Iowa giving him a cause of action for the death of his intestate; it follows, that both grounds of the demurrer are well taken, and it was properly sustained. Mallinckrodt v. Nemnich, 169 Mo. 388; Hand v. St. Louis, 158 Mo. 212; State ex rel. v. Aloe, 152 Mo. 466; Merchants Exchange v. Knott, 212 Mo. 616; Martin v. Castle, 193 Mo. 183. A foreign law if relied upon as constituting a cause of action or a defense, must be pleaded with such distinctness that the court may judge as to its effect. It is a fact to be pleaded as any other fact, and pleading by title, chapter or section or by stating a mere conclusion, is insufficient. McDonald v. Life Assn., 154 Mo. 618; Swank v. Hufnagle, 111 Ind. 453; Forsyth v. Preer, 62 Ala. 443; Cubbedge v. Napier, 62 Ala. 518; Hempstead v. Reed, 6 Conn. 480; Pearce v. Rhawn, 13 Ill.App. 637; Bean v. Briggs, 4 Ia. 464; Carey v. Railroad, 5 Ia. 357; Roots v. Merriwether, 71 Ky. 397; Templeton v. Sharp, 9 S.W. (Ky.) 696; Temple v. Brittain, 12 S.W. 306; Railroad v. Miller, 19 Mich. 305; Hoyt v. McNeil, 13 Minn. 390; Bank v. Lang, 2 N.D. 66; McDonald v. Life Assn., 154 Mo. 618.

OPINION

BURGESS, J.

The plaintiff instituted this suit in the circuit court of Buchanan county, against the defendant, to recover the sum of $ 10,000 damages for the death of his intestate, Martin M. Welch, caused by the alleged negligence of the defendant.

The petition filed therein was as follows (formal parts omitted):

"Plaintiff states that the Chicago Great Western Railway Company is a corporation duly organized and existing under and by virtue of the laws of the State of Illinois, and as such corporation is engaged in the general railroad business in the State of Iowa, and has a railroad right-of-way, tracks, rolling stock and equipment, owned, used and operated in the State of Iowa and employs, among other servants, brakemen to operate its trains through the State of Iowa. Plaintiff states that deceased, Martin M. Welch, was in the employ of defendant railway company as a railway brakeman on and prior to the third day of August, 1906, and that said deceased was brakeman on a freight train owned, operated and controlled by defendant in the State of Iowa.

"Plaintiff, James A. Gibson, states that he is now and during all the times herein mentioned, has been a resident of the State of Missouri, and that deceased, Martin M. Welch, died in the State of Iowa.

"Plaintiff states that under and by virtue of section 3297 of the Code of Iowa a person not a resident of the State of Iowa may be appointed administrator of the estate of a person who departed this life in the State of Iowa, and that on the -- day of August, 1905, plaintiff was duly and regularly appointed administrator of the estate of Martin M. Welch, deceased, in the probate court of Taylor county, in the State of Iowa, and that letters of administration were duly and regularly issued to plaintiff on the estate of said Martin M. Welch, and that he is now and since the -- day of August, 1905, has been the regularly appointed and duly acting administrator of the estate of Martin M. Welch, deceased, and was duly appointed administrator by the probate court of Buchanan county, Missouri, on the day of August, 1905, of the estate of Martin M. Welch, deceased, and is now acting and qualified administrator of said estate in Iowa and Missouri.

"Plaintiff states that under and by virtue of section 3447 of the Code of Iowa plaintiff is limited to two years in which to institute suit against defendant for the death of Martin M. Welch, caused by negligence, as hereinafter alleged, and that this suit was instituted in the circuit court of Buchanan county on the day of 1905, by filing in said court the original petition and issuing summons thereon and within two years after the death of Martin M. Welch.

"Plaintiff states that under and by virtue of sections 3313 and 3443 of the Code of Iowa actions for damages for the death of Martin M. Welch, survived to plaintiff as administrator, and that under and by virtue of said sections plaintiff is authorized and empowered to sue and recover damages caused by the death of Martin M. Welch against defendant on account of the carelessness and negligence of defendant, which resulted in the death of Martin M. Welch, as hereinafter alleged.

"Plaintiff states that the said Martin M. Welch, deceased, on and prior to the 3d day of August, 1903, was in the employ of defendant as a brakeman on one of its freight trains; that on or about the 23rd day of August, 1903, said Martin M. Welch, deceased, was engaged in the performance of his duties as such brakeman on one of defendant's freight trains, which ran from St. Joseph, Missouri, to Des Moines, Iowa; that said train consisted of cars heavily loaded with wheat and other grain and produce; that while so engaged in such duties, and while said train was running between the stations of Arispe, Iowa, and Shepherd, Iowa, and while the said train was in rapid motion, the said train was wrecked by reason of one of the cars of said train leaving the track on account of one of the wheels of said car being broken; that said car, which had said wheel broken, was heavily loaded with wheat beyond the capacity and strength of said car; that the wheel of said car at the time and for a long period of time prior to its leaving said track had been in the broken condition herein complained of, and that said defendant knew at the time that said car was attached to and made a part of the train herein referred to was broken, or by the use of ordinary care and reasonable inspection could have known of the broken and dangerous condition of said wheel.

"Plaintiff states that it was dangerous to the employees of defendant engaged in the operation of said train, and especially to deceased, to attach said car to said train, and the acts of defendant herein complained of in attaching said car in the condition herein alleged, and being overloaded, as herein alleged, was carelessness and negligence on the part of defendant, which caused the injuries and death of said Martin M. Welch, as herein stated.

"Plaintiff states that when said train was wrecked, as hereinbefore stated, on account of the car, hereinbefore referred to, leaving the track, Martin M. Welch was on said train as an employee of defendant, and in the performance of his regular and customary duties as a brakeman, and by reason of said train being wrecked plaintiff states that said Martin M. Welch was instantly killed by the cars of said train leaving the track of defendant railway company, falling against and upon said Martin M. Welch, and thereby causing the injuries from which he died, on the said 23rd day of August, 1903.

"Plaintiff states...