Kelly v. Union Pacific Ry. Co.
| Citation | 125 S.W. 818,141 Mo.App. 490 |
| Parties | A. D. KELLY, Adm'r, Respondent, v. UNION PACIFIC RAILWAY COMPANY, Appellant |
| Decision Date | 24 January 1910 |
| Court | Court of Appeals of Kansas |
Appeal from Linn Circuit Court.--Hon. John S. Butler, Judge.
Judgment affirmed.
R. W Blair and Douglass & Watson for appellant.
(1) The law of 1905 (Session Acts 1905, p. 95), authorizing a foreign administrator to sue on a cause of action arising in another State is unconstitutional and void for the reason the Legislature of this State has no power or authority to confer on an officer appointed by the courts of another State, the right to withdraw assets under its exclusive control and jurisdiction, and take them to another jurisdiction without the consent or authority of the court appointing such officer. The Legislature can legislate only upon matters relating to persons or property within this State. D'Alcy v. Ketcham, 11 How. (U.S.) 165; Pennoyer v. Neff, 95 U.S. 720. (2) A cause of action for damages for death is such an asset as will confer authority on a court to grant letters of administration. 18 Cyclopedia of Law and Proced., p. 70, and cases cited. Railroad v Lewis, 2 L.R.A. 67 and cases cited. (3) Letters of administration have no extra territorial force or effect and a foreign administrator has no right to sue beyond the jurisdiction of the State appointing him. 18 Cyc., p. 1221 and cases cited; Minor v. Cardwell, 37 Mo. 351, and cases cited. (4) An administrator by removing assets of his intestate beyond the limits of the State appointing him forfeits all right and title to such assets and cannot sue for same. Kilpatrick v. Bush, 23 Miss. 199; Woerner's Amer. Law of Admr., sec. 164 and cases cited. (5) At the time of the alleged wrongful death a foreign administrator could not maintain such a suit in this State. Vawter v. Railroad, 84 Mo. 679; McGinnis v. Foundry Co., 174 Mo. 231; 18 Cyc., p. 1237, and cases cited; Taylor v. Barron, 35 N.H. 495, and cases cited. (6) The statute 1905 (Session Acts, p. 95) confers on such foreign administrator a title to sue, or right to sue in this State. Bliss on Code Plead., sec. 408; Bulkey v Iron Co., 77 Mo. 107; Haskins v. Alcott, 13 Ohio St. 217; Warner v. Railroad, 178 Mo. 734; Epperson v. Telephone Co., 155 Mo. 346; Searles v. Railroad, 101 N.Y. 661; Oglesby v. Railroad, 177 Mo. 272; Root v. Railroad, 195 Mo. 367; Grant v. Railroad, 133 N.Y. 659. (7) Deceased and the car repairmen were fellow servants under the law of Wyoming. Law of Wyoming governs in determining this question. Root v. Railroad, 195 Mo. 367, and cases cited; Lee v. Railroad, 195 Mo. 400. (8) Under the common law as construed and declared by the courts of England, deceased and car repairers were fellow-servants. McDermott v. Railroad, 30 Mo. 115; Rohbeck v. Railroad, 43 Mo. 192; Parker v. Railroad, 109 Mo. 409; Dixon v. Railroad, 109 Mo. 423; Randall v. Railroad, 109 U.S. 482; Lanning v. Railroad, 196 Mo. 647; Grattis v. Railroad, 153 Mo. 380; Murray v. Railroad, 98 Mo. 577; Koener v. Car Co., 107 S.W. 481; Strottman v. Railroad, 109 S.W. 769; Railway Co. v. Murphy, 53 Ill. 337; Besel v. Railroad, 70 N.Y. 176; Corcoran v. Railroad, 126 N.Y. 673; Potter v. Railroad, 136 N.Y. 79; Railway v. Harrington, 62 Texas 597; Macken v. Railroad, 135 Mass. 203; Wood on Railway Law, vol. 3, p. 1501, sec. 388. (9) If the deceased chose the more dangerous way he was guilty of contributory negligence. Hurst v. Railroad, 163 Mo. 322; Moory v. Railroad, 146 Mo. 572.
Bresnehan & West for respondent.
(1) The act of 1905 is not unconstitutional. 13 Am. and Eng. Ency. Law, 948, 953; Nailor's Admr. v. Moffatt, 29 Mo. 126; Wilson v. Tootle, 55 F. 211; McCarty v. Railroad, 62 F. 437. (2) The right of a State to authorize suit to be maintained therein by a foreign personal representative to recover for the wrongful death of his intestate under the statute of the State of his appointment, where the damages recoverable do not become assets of the estate and are not subject to the payment of the debts of the intestate, but belong to the next of kin, is universally recognized. Popp v. Railroad, 96 F. 465; Railroad v. Thieband, 114 F. 918; Williams v. Railroad, 138 F. 571; 13 A. E. Enc. of Law, 953; 18 Cyc. of L. & P., 1239; Thompson on Neg., sec. 6998; Elliott on Railroads, sec. 1372; White's Personal Injuries on Railroads, sec. 71; Railroad v. Cox, 145 U.S. 593. (3) The act of 1905, applies to rights of action already accrued. 13 Am. and Eng. Ency. Law, 948, 949; McGinnis v. Mo., etc., Co., 174 Mo. 225; Casey v. Hoover, 197 Mo. 62; May v. Burk, 80 Mo. 675. (4) Evidence of negligence need not be direct and positive; it may be inferred from the surrounding circumstances. Rine v. Railroad, 100 Mo. 228. (5) "It is sufficient if the facts proved are of such a nature and are so connected and related to each other, that the conclusion therefrom may be fairly inferred." Combron v. Railroad, 165 Mo. 543; Settle v. Railroad, 127 Mo. 341. (6) Who are fellow-servants? Parker v. Railroad, 109 Mo. 409; Relyea v. Railroad, 112 Mo. 93; Railroad v. Baugh, 149 U.S. 368; 12 Am. & Eng. Ency. Law, 971; Sullivan v. Railroad, 97 Mo. 113; Conden v. Railroad, 78 Mo. 567; Lewis v. Railroad, 59 Mo. 495; Hall v. Railroad, 74 Mo. 298; Koerner v. Car Co., 209 Mo. 141, 152; Grattis v. Railroad, 153 Mo. 380; Railroad v. Herbert, 116 U.S. 642; Railroad v. Ward, 61 F. 927; Railroad v. Mansberger, 65 F. 196; Railroad v. Thompson, 70 F. 944.
James E. Sims was engaged in defendant's service as a switchman in its yards at Cheyenne, in the State of Wyoming. While so engaged he was killed by cars he was assisting to switch from one track to another. The plaintiff is administrator of his estate, appointed in the State of Wyoming. He brought this action against defendant in Linn county, Missouri. Under the laws of Wyoming an action is given to the administrator for the death of his intestate caused by the negligence of another, the sum recovered to be distributed to those entitled to his estate. [Secs. 3448, 3449, R. S. Wyoming 1899.] And by the laws of this State such an action accruing in another State may be brought in this State by the administrator appointed in the State where the action accrued. [Laws Mo. 1905, p. 95.]
By a process of statement and reasoning that we regard as ill-founded, defendant insists that by allowing the action to be brought in this State, it is transferring the assets of an estate in Wyoming to this State, and therefore violates the Constitution, State and Federal. It is not transferring assets. The sum recovered is not assets of the estate. The administrator is a mere trustee to maintain an action for the benefit of those entitled to the damages, as they are named in the statute. [McCarty v. Railroad, 62 F. 437; Elliott on Railroads, sec. 1372; White's Personal Injuries, sec. 71.]
However that may be, the matter has been disposed of by the Supreme Court, the amount of the judgment was above the appellate jurisdiction of this court when it was obtained and for that reason the appeal was taken to the Supreme Court. Before it was heard in that court the jurisdiction of this court was raised by the statute to a sum greater than the judgment, and by provision of the statute all cases pending unsubmitted in the Supreme Court which fell within the jurisdiction of this court as thus increased, were to be transferred to this court. Accordingly counsel for plaintiff filed a motion to transfer the case to this court, and counsel for defendant opposed the motion, suggesting that while the amount involved was within the jurisdiction of this court, the constitutional questions were in the case and therefore jurisdiction remained in the Supreme Court, since in all cases involving a construction of the State or Federal Constitution the Supreme Court alone had jurisdiction. Nevertheless, the latter court transferred the case to this court, which in our view, eliminates all alleged constitutional questions.
To repeat all the matter related in the briefs of counsel as to the death of the deceased and its cause, would take much space. For all practical purposes it will be only necessary to state that as already said, deceased was one of defendant's switchmen. At the time of his death he was engaged, in the nighttime, in assisting to switch cars from one track to another. It was his duty to get on cars which had been "kicked" onto another track, and ride to the place where they were to be stopped. The cars involved here were pulled out from one track and "kicked" down another track towards the east. Deceased got on the outside of the head car and started to ride it down to the place where he would stop it. The car had a metal stirrup as the foothold one would take in getting on top the car or could stand on with one foot while clinging to the car and riding a short distance by holding to the ladder with his hand and the other foot unplaced or, perhaps, on the oil box to the side and over the wheel of the car. A wheelbarrow had been left near the track, at not a great distance down, and it is plaintiff's theory that this barrow, being negligently left so near the track, was struck by the deceased with a portion of his body as he rode along on the side of the car, and that he was thus knocked so that his foothold was loosened and clinging with his hands he finally was caught by the wheels and mangled to death. No one saw him fall, but one of the crew, noticing he did not return, became uneasy and went along the track. He stated: ...
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