Joplin & P. Ry. Co. v. Payne

• Decision Date: 07 March 1912
• Docket Number: 3,625.
• Parties: JOPLIN & P. RY. CO. v. PAYNE.
• Court: U.S. Court of Appeals — Eighth Circuit

194 F. 387

JOPLIN & P. RY. CO. v. PAYNE.

No. 3,625.

United States Court of Appeals, Eighth Circuit.

March 7, 1912

Edward C. Wright (John P. Curran, on the brief), for plaintiff in error.

C. A McNeill (E. V. McNeill, on the brief), for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and WM. H. MUNGER District judge.

WM. H MUNGER, District Judge.

Robert H. Payne brought this action against the Joplin & Pittsburg Railway Company to recover damages which he sustained on account of the death of his wife, who was a passenger upon the defendant road and lost her life in the state of Kansas through the negligence of the defendant. A trial was had resulting in a judgment for plaintiff, and the railroad company seeks to have that judgment reversed.

There are three assignments of error: First, that the petition does not state a cause of action; second, that judgment was given for plaintiff, when it should have been for defendant; third, that the judgment under the evidence is excessive.

As no request was made for a directed verdict at the close of all of the evidence, we cannot inquire as to the sufficiency of the evidence. Western Coal & Mining Co. v. Ingraham, 70 F. 219, 17 C.C.A. 71; Consolidated Coal Co. v. Polar Wave Ice Co., 106 F. 798, 45 C.C.A. 638; Oswego Township v. Travelers' Ins. Co., 70 F. 225, 17 C.C.A. 77.

This court is also precluded from considering the question as to whether the verdict was excessive. Illinois Cent. R. Co. v. Davies, 146 F. 247, 76 C.C.A. 613; AEtna Indemnity Co. v. J. R. Crowe Coal & Mining Co., 154 F. 545, 83 C.C.A. 431; Nelson v. Bank of Fergus County, 157 F. 161, 84 C.C.A. 609, 13 Ann.Cas. 811, and cases therein cited.

The only error which we can consider, and the one chiefly argued, is whether the petition stated a cause of action. This action was founded upon a state statute. Section 422 of the Civil Code of Kansas, supplemented by section 422a, reads as follows:

'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.'

'Sec. 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 alleges that deceased died intestate, and left no children or direct descendants; that plaintiff, as the surviving husband, was the next of kin; and that no administrator or personal representative of her estate has been appointed. It is argued that the term 'next of kin' means blood relation, and hence does not include the husband. The above statute provides that the damages recovered shall be distributed in the same manner as personal property of the deceased, and under the Kansas statute the husband inherits personal property of his deceased wife.

This statute was, before the cause of action in this case arose, fully considered by the Supreme Court of the state in Atchison, T. & S.F. Ry. Co. v. Townsend, 71 Kan. 524, 81 P. 205, 6 Ann.Cas. 191, and in that case it was said:

'It is first contended that, under section 422 of

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