Madden v. Missouri Pac. Ry. Co.

• Decision Date: 13 February 1917
• Docket Number: No. 10133.,10133.
• Parties: MADDEN v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

192 S.W. 455

MADDEN v. MISSOURI PAC. RY. CO.

No. 10133.

Supreme Court of Missouri. In Banc.

February 13, 1917.

On Motion to Modify, February 24, 1917.

Rehearing Denied February 24, 1917.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Ralph Morgan Madden against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Thomas Hackney, of Kansas City, and Edward J. White, of St. Louis, for appellant. Jesse E. James and Ralph S. Latshaw, Jr., both of Kansas City, for respondent.

BOND, J.

I. This is an action for personal injury. The cause of action alleged in the petition is, to wit:

"Plaintiff states that on said January 27, 1910, he was an employé of defendant as a common laborer in defendant's railroad yard in Kansas City, Wyandotte county, Kan.; that in said railroad yard defendant, through its employés, including plaintiff, was engaged in working upon and about engines and cars, that for the prosecution of said work plaintiff was required to use certain trucks in and about said yard for the purpose of carrying and moving large and heavy pieces of iron and machinery from one part or portion of said yard to another; that said trucks were the ordinary two-wheeled trucks commonly used for said purpose.

"Plaintiff states that on or about January 27, 1910, and for a long time prior thereto, defendant had in its employ in its said yard a man by the name of Tandy, who was a foreman or boss in said yard.

"Plaintiff states that on or about January 27, 1910, he was instructed by defendant to work under and with said Tandy, whose other name is unknown to plaintiff; that said Tandy was plaintiff's boss or foreman at said time and place for the doing of the work herein set forth; that at said time and place, plaintiff, with said Tandy, had moved or wheeled on said truck a certain large and heavy piece of iron from the machine shop in said yard to a standing engine in said yard; that after said iron had been so moved and while said truck was standing motionless and said piece of iron laying on same, said Tandy then and there carelessly and negligently took hold of one end or portion of said iron, and carelessly and negligently lifted said iron and carelessly and negligently moved the said iron, and carelessly and negligently allowed and caused the said iron to fall upon said truck with such force and violence and great weight that said truck was thereby and on account thereof caused to, and the same did, jump, jerk, and move with great violence and suddenness, striking plaintiff with great force and violence on plaintiff's back and spine and ribs, where the same join the spine, thereby injuring plaintiff as hereinafter set forth."

The petition concludes with a description of the injuries sustained by plaintiff and a prayer for judgment in the sum of $7,500 and costs. The answer of defendant admitted its incorporation, and that it operates a railroad system, averred that the plaintiff and the employés of defendant, who were working with him at the time of the alleged accident, were fellow servants; averred, further, that at the time of the alleged accident there was in force a Kansas statute (citing the section, chapter, and year of its enactment), which provided:

"That in case of an injury being sustained by an employé of a railroad company, notice in writing that such injury has been sustained, stating time and place thereof, shall be given by or on behalf of the person injured to such railroad company within eight months after the occurrence of the injury; that the giving of such notice is a condition precedent to the maintenance of a suit for the alleged injury, and that no notice of the alleged injury claimed by plaintiff to have been sustained by him, such as required by said statute of Kansas, has ever been given to this defendant, and it pleads these facts in bar of plaintiff's action."

To this answer plaintiff replied only by a general denial. On the trial there was evidence tending to prove all the allegations of the petition, except the statement that Tandy was a foreman or boss, as to which the evidence tended to support the averment in the answer that he was a fellow servant of the plaintiff. The evidence further showed the existence of a statute in the state of Kansas as pleaded by defendant (Laws Kansas 1905, c. 341, § 22, and Statutes of Kansas, § 6999) which, in its entirety is, to wit:

"Every railroad company organized or doing business in the state of Kansas shall be liable for all damages done to any employé of said company in consequence of any negligence of its agents; or by any mismanagement of its engineers or other employés, to any person sustaining such damage: Provided, That notice in writing that an injury has been sustained stating the time and place thereof, shall have been given by or on behalf of the person injured, to such railroad company within eight months after the occurrence of the injury: Provided, however, that where an action is commenced * * * within said eight months, it shall not be necessary to give said notice."

(Only the italicized portion of the above statute was pleaded in defendant's answer.)

II. We have set out the substance of the pleadings in this case for the reason that a review of the action of the trial court in overruling the written demurrer of defendant at the close of all the evidence requires us to construe the pleadings and to decide if they afford any basis for a recovery by plaintiff in the circumstances shown in evidence on the trial.

It is never necessary to plead "presumptions of law nor matters of which judicial notice is taken." R. S. 1909, § 1833. The courts of Missouri do not take judicial notice either of the judicial decisions or the statutory law of sister states. Coleman v. Lucksinger, 224 Mo. loc. cit. 14, 123 S. W. 441, 26 L. R. A. (N. S.) 934. Hence they can only be brought to the knowledge of the courts of Missouri where their consideration is essential to the sustention of a cause of action or a defense, by being both pleaded and proven by the party relying upon them. Rashall v. Railway, 249 Mo. loc. cit. 516, 155 S. W. 426; Clark v. Barnes, 58 Mo. App. loc. cit. 671.

It is also the settled law of this state that causes of action arising in another state or territory are governed by the local statutes and decisions of the place where they originated. Riley v. Railway, 256 Mo. 596, 165 S. W. 1043. Where an action of this sort is brought in the state of Missouri, and no allegation of the applicatory law is made in the pleadings, the next step to be taken by the court is to determine whether the state or territory where the cause of action arose was acquired from Great Britain or some other sovereignty over whose dominion the common law of England never prevailed. In the former cases we will presume that the common law of England, as expounded in Missouri, obtains. In the latter cases no such presumption is possible, for it would be contrary to a historical fact within our judicial knowledge. Wentz v. Railway, 259 Mo. 467, 168 S. W. 1166, Ann. Cas. 1916B, 317; Hazelett v. Woodruff, 150 Mo. loc. cit. 540, 51 S. W. 1048.

In the instant case the injury complained of happened in the state of Kansas, whose territory was a part of that acquired by the Louisiana Purchase. We must therefore, assume that the facts stated in plaintiff's petition were not designed to invoke redress under the common law. In other words, the present suit cannot be presumed to be one at common law. The question still remains, however, whether in this case the rule, permitting a presumption that the statutory law of the forum is also the statutory law of a sister state, can obtain. Hazelett v. Woodruff, 150 Mo. loc. cit. 540 et seq., 51 S. W. 1048. If that presumption may be indulged under the pleadings and facts shown on the trial, then a case was made for the jury, since there is a general law of this state authorizing a recovery for injuries caused by the negligence of a fellow servant. R. S. 1909, § 5434. In considering this question it must be remembered that we are only permitted to presume a statute similar to our own in states like Kansas, in the absence of any evidence on the trial tending to show a local statute providing for recoveries in cases like that stated in the present petition; for such a presumption is one of fact, and is therefore never allowable where evidence touching the fact supervenes. There was nothing in plaintiff's petition alone which would have prevented a presumption that our Missouri statute was also enacted in Kansas, since none of its allegations referred in any way to the existence of a Kansas statute. Hence at that stage of the proceedings the petition would not have been subject to a general demurrer. But that does not dispose of the question which was presented later and which grew out of the fact that the answer of defendant did allege, by proper pleading, the terms of a part of the Kansas statute bearing on the right of the plaintiff to recover upon the facts stated in his petition, (McDonald v. Bankers' Life Ass'n of Des Moines, Iowa, 154 Mo. loc. cit. 628, 55 S. W. 999, et cases cited), to which defense the plaintiff only replied by a general denial and proceeded to trial without amending his petition so as to set forth the entire statute of Kansas creating the cause of action upon which he sought to recover, whereupon proof was made of the entire Kansas statute applicable to the cause of action upon which plaintiff's petition was based, and then a demurrer to the evidence was interposed by defendant. This objection could not be sooner made, for, until that statute appeared in evidence, there was nothing which forbade the indulgence of a presumption by which plaintiff's case could be sustained under the fellow-servant act of Missouri. It is, however, a rule, to which this court is thoroughly committed, that presumptions of fact which...