Hurlburt v. Bush
| Decision Date | 15 September 1920 |
| Citation | 224 S.W. 323,284 Mo. 397 |
| Parties | BERNICE HURLBURT, Administratrix of Estate of WILLIAM W. HURLBURT, v. B. F. BUSH, Receiver of MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. W. O. Thomas, Judge.
Affirmed.
Edward J. White, Thomas Hackney and Leslie A. Welch for appellant.
(1) Statutory causes of action for death under Kansas laws are enforced in Missouri only on grounds of comity. Newlin v Railroad, 222 Mo. 391; Yost v. Railroad, 245 Mo. 234; Woodard v. Bush, 282 Mo. 163. (2) Plaintiff's only remedy for the death of Hurlburt under the Kansas law is the Kansas Compensation Act of 1911 as amended in 1913. Frere v. M. K. & T. Ry. Co., 94 Kan. 57; Unrine v. Salina Railroad Co., 104 Kan 236; Benson v. Bush, 104 Kan. 198; C. R. I. & P. Ry. Co. v. Fuller, 105 Kan. 608; Shade v. Cement Co., 92 Kan. 146; McRoberts v. Zinc Co., 93 Kan. 364. (3) Plaintiff's instruction C-1 would have been erroneous, because it illegally commented on the evidence even if the Compensation Act had not been applicable to this action. (4) Plaintiff's instruction number four authorized an illegal and improper measure of damages, even if the Compensation Act had not controlled this action. Chesapeake & Ohio Railroad Co. v. Keely, 241 U.S. 485, 36 S.Ct. 633; Smith v. Pryor, 195 Mo.App. 259, 265.
Atwood, Wickersham, Hill & Popham for respondent.
(1) Defendant admitted deceased Hurlburt was engaged in the scope of his employment in working for the defendant in carrying on intrastate commerce at the time he received his mortal injury. Defendant's liability is to be measured by the Kansas Railroad Employer's Liability Act of March 7, 1911 (Laws 1911, pp. 437 to 438, General Statutes Kansas 1915, secs. 8480 to 8485.) The Workmen's Compensation Law of 1911 passed by the same Legislature a week later does not apply, because Section 48 of this Act (R. S. 1915, Sec. 5942) clearly, unconditionally and unequivocally excepted from its operation the Railroad Act under which this case was tried. The Railroad Act has been repeatedly interpreted and applied by the Supreme Court of Kansas since its enactment. Defenbaugh v. Union Pac. Railroad Co., 102 Kan. 572; Ballou v. Railroad, 95 Kan. 763; Rockhold v. Railway Co., 97 Kan. 719; Rask v. Railroad, 103 Kan. 443. (2) Since the language of the saving clause or exception in the Workman's Compensation Act of 1911 is clear and unambiguous, there is nothing left for this court to do but to follow the plain direction of the statute. The courts of last resort and textwriters are unanimous in their declaration of this principle of law, applicable to the facts shown by the record. 25 Ruling Case Law, sec. 217, p. 961; 1 Fed Statutes Anno. (2 Ed.), sec. 142, p. 164; 36 Cyc. 1114, 1150, 1151; 2 Lewis's Sutherland on Statutory Construction (2 Ed.), p. 698, sec. 366; Shank v. State, 108 N.E. 521; State ex rel. Green County v. Giddeon, 199 S.W. 948; C. C. & St. L. Ry. Co. v. Blind, 105 N.E. 492; State ex rel. v. Amick, 247 Mo. 292; Rushenberg v. So. Elec. R. R. Co., 161 Mo. 85; State ex rel. v. Levitt, 96 Kan. 452. (3) Appellant's objection to plaintiff's Instruction 4 is unmerited. This instruction was in accord with the Kansas law under which this case was tried and is also in line with the law of this State. Forbes v. Railroad, 101 Kan. 480; Warders v. Railroad, 105 Kan. 4; Kansas v. Pacific Railroad Co., 19 Kan. 90; Gas Co. v. Carter, 65 Kan. 569; Barth v. K. C. El. Ry. Co., 142 Mo. 556; Powell v. Railroad, 255 Mo. 454. (4) Every allegation of negligence in plaintiff's petition was proven by an overwhelming weight of the evidence. Counsel for appellant practically admits this, by failing in his brief to discuss the evidence in the case.
This is an action for damages for the death of William W. Hurlburt, a locomotive engineer in defendant's employ, on the night of August 11, 1916. Immediately before his death Hurlburt was backing his train over the tracks of the Kansas City Northwestern Railroad near Basehor, Kansas. In going around a curve the engine and tender were derailed and rolled down an embankment, resulting in Hurlburt's death.
The deceased resided in Wyandotte County, Kansas, and his wife was appointed administratrix of his estate in the probate court of that county. As administratrix she brought this action in the Circuit Court of Jackson County, Missouri, February 23, 1917. A trial before a jury resulted in a verdict for plaintiff, December 11, 1917, for $ 9500. From this judgment defendant appeals to this court.
Plaintiff's petition was in two counts. The first was bottomed on the Railroad Employers' Liability Act of Kansas (Laws 1911, pp. 437-438; 1915 Gen. St. secs. 8480-8485). The second alleged liability under the Federal Employers' Liability Act. This count was dismissed at the trial and it was admitted that at the time of Hurlburt's death the work in which he was engaged was in the nature of intrastate commerce. It was also admitted that the defendant was operating the railroad in question as a receiver at the time of Hurlburt's death.
The amended answer consisted of a general denial, a plea that the death was caused solely by the negligence of Hurlburt in operating his train backwards at a dangerous and excessive rate of speed, in violation of the rules and regulations limiting backward operations of cars to ten miles an hour, and also a plea of assumption of risk by the deceased. As a bar to plaintiff's right to recover under the Railroad Employers' Liability Act, the defendant pleaded the Workmen's Compensation Act of Kansas, approved March 14, 1911 (Laws of Kansas 1911, pp. 382-398; as amended, Laws 1913, pp. 385-389; 1915 Gen. St. secs. 5896-5942), and also that the Compensation Act applied to the employment in which Hurlburt was engaged at the time of his death; that neither the defendant nor Hurlburt had filed with the Secretary of State of Kansas an election not to accept the provisions of said Compensation Act, and that therefore under its terms these parties had elected to come under same, and it therefore applied to the defendant and Hurlburt. The defendant further pleaded that the Compensation Act fixed the only remedy available for the recovery of compensation for injury or death in the State of Kansas when employer and employee were operating under said act, that it excluded any other remedy than therein provided for the death of said Hurlburt; that said act provided a special and exclusive remedy for the collection of said compensation and established a prescribed method for its presentation, arbitration and enforcement before designated tribunals of claims for compensation, and required the giving of notice of all claims within six months from the date of death, and that such method had not been followed and that no such notice had been given. The answer also averred that not only was the Compensation Act the only remedy allowed by the laws of Kansas for the collection of compensation for the death of said Hurlburt, but also that said act provided that no action or proceeding thereunder could be brought or maintained outside of the State of Kansas.
Plaintiff in her reply contended that the Workmen's Compensation Act did not apply, but that the Railroad Employers' Liability Act was the sole statute of Kansas governing defendant's liability. Plaintiff's evidence tended to show negligently maintained tracks, roadbed and improper construction at the place of the accident; that the ties were rotten and the spikes loose in the ties; that the rails were light and that there was no elevation on the outside of the curve at the place of the accident; that at this point the track was not ballasted, the ties being laid upon a dirt fill.
Defendant contended that the Railroad Liability Act passed by the same Legislature which enacted the Compensation Act merely afforded a remedy for the recovery of compensation for injuries or death to employees of railroads who had elected not to come under the Compensation Act. Testimony was offered to show that neither the deceased, Hurlburt, nor the defendant, Bush, nor the Missouri Pacific Railway Company had elected not to come under the provisions of the said Compensation Act.
It was also shown that a rule of the defendant (Q.14) limited the speed of engines running backwards at the point of this accident to ten miles per hour, and that at the time of his death Hurlburt, with his train crew of five men, was running his train, consisting of engine, tender, five empty cars and one caboose, backwards at a speed of from ten to fifteen miles per hour, when the tender jumped the track and caused the engine to roll down an embankment and kill him instantly.
At the conclusion of all the evidence the defendant requested an instruction to the effect that since it appeared that neither the deceased nor the defendant ever filed an election not to be governed by the Kansas Workmen's Compensation Act, said law governed the rights of plaintiff and all liabilities of defendant for damages on account of the death of said Hurlburt, and therefore plaintiff could not recover. This instruction was refused. The defendant also asked a peremptory instruction directing the jury to find the issues for the defendant, which was also refused, and the case was submitted to the jury on the theory that the action was governed by the Railroad Employers' Liability Act instead of the Compensation Act, with the result stated.
I. Defendant contends that plaintiff's action was improperly based upon the Kansas Railroad Employers' Liability Act of March 7, 1911, otherwise designated as Sections 8480-8485 G. S. Kan. 1915, which it is alleged, was repealed by the Workmen's...
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