Lang v. J. C. Nichols Inv. Co.

• Decision Date: 06 March 1933
• Citation: 59 S.W.2d 63,227 Mo.App. 1123
• Parties: ORA LANG, RESPONDENT, v. J. C. NICHOLS INVESTMENT CO., APPELLANT
• Court: Kansas Court of Appeals

59 S.W.2d 63

227 Mo.App. 1123

ORA LANG, RESPONDENT, v. J. C. NICHOLS INVESTMENT CO., APPELLANT

Court of Appeals of Missouri, Kansas City

March 6, 1933

Certiorari denied by Supreme Court, June 10, 1933.

Appeal from Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.

AFFIRMED.

Judgment affirmed.

Sutton R. Layton and Madden, Freeman & Madden for respondent.

Henry S. Conrad, L. E. Durham, Hale Houts and Spurgeon L. Smithson for appellant.

OPINION

TRIMBLE, J.

This is an action brought by plaintiff as the widow of Mark Lang, deceased, who, while riding in an automobile in the State of Kansas, going west on paved Highway No. 50 and crossing its intersection with Mohawk Lane, collided with the automobile of one, Hoffman, who was proceeding east on said Highway across said intersection, which collision is alleged to have been caused by the skidding of said cars on account of an unobservable, slippery and dangerous condition arising from an accumulation or stratum of mud from a recent grading of Mohawk Lane by the defendant J. C. Nichols Investment Company, owner of the Subdivision of which Mohawk Lane is a part; the negligence charged being that, in grading said Mohawk Lane to its intersection with Highway No. 50, defendant left a quantity of loose earth on said lane which was negligently allowed to wash down upon the paved slab of said Highway No. 50 by reason of the negligent failure to provide planks or guards to prevent such washing. Plaintiff's husband was almost instantly killed by said collision.

Deceased left his widow and two children, Louis Lang, a minor eighteen years of age and Doris Adair, twenty-one years old; the widow and Louis, during deceased's life, being dependent upon him, and were by his death deprived of his support, assistance, society and maintenance; and this suit was instituted in Missouri by plaintiff as his widow, for the exclusive benefit of his widow and children under the Kansas Statute giving to them a cause of action for wrongful death (Sec. No. 60-3202, Gen. Stats., Kansas, 1923). The section provides that "the action must be commenced within two years. The damages cannot exceed $ 10,000, 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 deceased." The limitation as to time is, it will be noted, a part or condition of the cause of action created.

At first, the suit was jointly against defendant and Hoffman and certain corporations other than defendant, but was later dismissed as to all except it, against which plaintiff has proceeded to judgment based on a verdict for $ 7500 in plaintiff's favor, from which defendant has appealed.

As hereinabove shown, the section of the Kansas Statute creating the cause of action provides in the statute that the action must be commenced within two years. Our Missouri Death Statute (Sec. 3262, Art. 1, p. 27, entitled "Damages," R. S. Mo. 1929, 5 Mo. St. Ann., p. 3353) provides a somewhat similar cause of action, but by a Statute of Limitation (Sec. 3266 of same article), it is provided that: "Every action instituted by virtue of the preceding sections of this article shall be commenced within one year after the cause of action shall accrue." (Italics ours.)

Deceased was killed, in Kansas, on August 7, 1928; the suit was instituted on October 4, 1929, in Missouri. It will be observed that this was after the expiration of one year allowed by the aforesaid Missouri Statute, but within the two years stated in the Kansas Act.

Throughout the trial, defendant insisted, and preserved its objections in every way, that the suit was barred because of our said Statute giving only one year for bringing it; said point is now again raised on appeal, and, of course, calls for determination at the outset.

It must be borne in mind that the cause of action herein sought to be enforced has no basis or support whatever in said Missouri Death Statute, Section 3262. The cause of action is given by the Kansas Statute, Section No. 60-3203 above cited; and enforcement in Missouri, of such cause of action arising in Kansas, is authorized by our statute, Sec. 705, R. S. Mo. 1929, 2 Mo. St. Ann., page 918. Now, our statute of one-year limitation, Section 3266, aforesaid, is a part of the same Article 1 of Chapter 27 in which our Death Statute is found, and by its very terms applies only to said Death Statute and to the other causes of action "instituted by virtue of the preceding sections of this article" (Art. 1, Chapter 27). The only limitation statutes applying to actions permitted by our Section 705 is the general 5-year limitation statute (Sec. 862, R. S. Mo. 1929), which provides that length of time in which suit may be brought "for any injury to the person or rights of another, not arising on contract not herein otherwise enumerated," and Section 869, R. S. Mo. 1929, 2 Mo. St. Ann., p. 1158, which limits actions originating in another state to the term in which it is "fully barred by the laws of the State, territory or country in which it originated." (Which in this case is two years.) So that, as to the cause of action herein, under the circumstances of this case, the governing limitation is that of the two years provided in the Kansas Death Statute sought to be enforced. To apply to the cause of action herein the limitation of one year in Section 3266, which, so far as this case is concerned, has reference only to the causes of action given in Sections 3262-63-64-65 would be to judicially amend Section 3266 so as to make it apply, not only to the actions "instituted by virtue of the preceding sections" but also to that given by Section 705, Article 1, Chapter 5, Revised Statutes, Missouri 1929, a thing we have no right or authority to do.

The case of Farthing v. Sams, 296 Mo. 442, 247 S.W. 111, is cited in support of appellant's contention that plaintiff's cause of action herein is barred by said section 3266. In that case, plaintiff, a resident of Illinois, was a minor at the date the cause of action accrued in that State, to-wit, September 20, 1899. Under the Statutes of Illinois, the action could be brought at any time within two years thereafter, but plaintiff, being a minor, another statute of Illinois gave him two years after he became 21 (April 12, 1908), or until April 12, 1910, to bring suit. But before this time elapsed defendant removed from the State of Illinois and became a resident of Missouri in 1907, and remained so ever thereafter, and by another Illinois statute, limitation did not run while defendant was out of the State. So that by reason of plaintiff's minority and defendant's non-residency from and after 1907, plaintiff was not barred by any statute of Illinois. But plaintiff did not institute his suit in Missouri until more than eight years after plaintiff had become of age, which eight years were more than the five years allowed by the general limitation statute of Missouri (Sec. 862), during all of which plaintiff could have sued defendant in Missouri since the former was, during all of that time, of full age and under no disability. It was held that the Missouri statute of general limitation applied, and that the cause of action was barred thereby.

But the facts in the case at bar are different. Here, the general five-year Missouri Statute of Limitation cannot be invoked because, at the time this suit was brought, the five years allowed by it had not elapsed; nor was the case barred by Section 869, Revised Statutes Missouri 1929, since it was not "fully barred" by the two-year limitation in the Kansas Statute. In the case at bar both parties were and are residents of Missouri, hence the residence of the parties does not affect or complicate the question, 296 Mo. 442, l. c. 447. Hence the cited case does not control under the facts of the present case, save perhaps insofar as it impliedly would have given effect to the statute of the foreign state if the facts had been such as to allow its operation, which is precisely the situation here.

Likewise, the cited case of Tieffenbrun v. Flannery, 198 N.C. 397, 151 S.E. 857, 861, does not fit the facts of the case now being considered. Plaintiff in that case, a resident of Missouri, and administratrix of her husband's estate under appointment by the Probate Court of Dunklin County, Missouri, sued the defendant in North Carolina for the wrongful death of her husband, killed in Florida because of defendant's negligence in driving his automobile in violation of certain statutes of Florida regulating the operation of motor vehicles. Objection was made that she could not maintain in North Carolina an action for the wrongful death of her husband, because his suit was brought more than one year after the death of said deceased, which would be in contravention of the North Carolina statute which allowed only one year in which suit could be brought. In Florida, however, its statute provided that suit could be brought at any time within two years. Plaintiff's contention was that, although it was not brought in one year, yet as Florida allowed two years, and the action was brought within that time and was transitory, i. e., followed the person, she could assert the same in any forum which had jurisdiction of the parties and of the cause of action; and that as the time limit contained in the North Carolina statute is a part of the cause of action, it cannot be considered a Statute of Limitation, and since she brought from Florida to North Carolina a valid cause of action, she is entitled to maintain the same in the North Carolina courts. The court quoted 2 Wharton on Conflict of Laws (3 Ed.), p. 1264, which says:

"While the bar of the statute by which the cause of action is created...