Hulbert v. City of Topeka

• Citation: 34 F. 510
• Parties: HULBERT v. CITY OF TOPEKA.
• Decision Date: 09 April 1888
• Court: U.S. District Court — District of Kansas

34 F. 510

HULBERT v. CITY OF TOPEKA.

United States Circuit Court, D. Kansas.

April 9, 1888

This was an action by A. G. Hulbert, the Missouri administrator of one Frances G. Hulbert, to recover damages from the city of Topeka, on the ground that her death had been caused by the negligent manner in which that city kept its streets. The accident occurred in August, 1879, and Mrs. Hulbert died in St. Louis, Mo., in March, 1886. The laws of that state as to this class are found in 1 Rev.St.Mo. 1879, and are as follows:

'Sec 94. Executors and administrators shall collect all money and debts of every kind due to the deceased, and give receipts and discharges therefor; and shall commence and prosecute all actions which may be maintained and are necessary in the course of his administration, and defend all such as are brought against him.

'Sec 95. They shall prosecute and defend all actions commenced by or against the deceased at the time of his death, and which might have been prosecuted or maintained by or against such executor or administrator.

'Sec 96. For all wrongs done to the property, rights or interest of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrong-doer; and, after his death, against his executor or administrator, in the same manner, and with the like effect, in all respects, as actions founded upon contract.

'Sec. 97. The preceding section shall not extend to actions for slander, libel, assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator.'

'Sec. 2121. Whenever any person shall die from any injury, resulting from or occasioned by the negligence, unskillfulness, or criminal intent of any officer, agent, servant, or employe while running, conducting or managing any locomotive, car, or train of cars; or of any master, pilot, engineer, agent, or employe while running, conducting, or managing any steam-boat, or any of the machinery thereof; or of any driver of any stage-coach, or other public conveyance, while in charge of the same as a driver; and when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad, or any part thereof; or in any locomotive or car; or in any steam-boat, or the machinery thereof; or in any stage-coach, or other public conveyance,-- the corporation, individual, or individuals in whose employ any such officer, agent, servant, employe, master, pilot, engineer, or driver shall be at the time such injury is committed, or who owns any such railroad, locomotive, car, stage-coach or other public conveyance at the time any injury is received, resulting from or occasioned by any defect or insufficiency above declared, shall forfeit and pay for every person or passenger so dying the sum of five thousand dollars, which may be used for and recovered-- First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or, third, if such deceased be a minor and unmarried, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment; or, if either of them be dead, then by the survivor. In suits instituted under this section it shall be competent for the defendant, for his defense, to show that the defect or insufficiency named in this section was not a negligent defect or insufficiency.

'Sec. 2122. Whenever the death of a person shall be caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.

'Sec. 2123. All damages accruing under the last preceding section shall be sued for and recovered by the same parties, and in the same manner as provided in section two thousand one hundred and twenty-one, and in every such action the jury may give such damages, not exceeding five thousand dollars, as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default.' The laws of Kansas referred to in the opinion are found in Dassler's Comp. Laws Kan. 1879, and are as follows:

'Sec. 420. In addition to the causes of action which survive at common law, causes of action for mesne profit, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same.'

'Sec. 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.'

G. N. Elliott, for plaintiff.

W. A. S. Bird, for defendant.

BREWER J.

This case is now submitted on a demurrer to a second amended petition. The facts are these: On August 21, 1879, Frances G Hulbert, the plaintiff's intestate, while on one of the streets of the city of Topeka, was injured; and it was claimed that the injury was caused by the negligence of the defendant in failing to keep that street in good repair. On the 3d of March, 1880, she filed her petition in the state court. The case remained there for some four years and over, during which time it was tried, but the trial resulted in a hung jury. Thereafter it was removed to this court, and another trial had, with like result. On the 20th of March, 1886, she died, being then a resident of St. Louis, and the present plaintiff was duly appointed her administrator by the probate court of St. Louis. The first amended petition set up the fact of the injury; that by it the deceased was seriously injured, and was...