Matheson v. The Kansas City

• Decision Date: 07 April 1900
• Docket Number: 11,419
• Citation: 60 P. 747,61 Kan. 667
• Court: Kansas Supreme Court
• Parties: MARY J. MATHESON et al. v. THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY

60 P. 747

61 Kan. 667

MARY J. MATHESON et al. v. THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY

No. 11,419

Supreme Court of Kansas

April 7, 1900

Decided January, 1900.

Error from Wyandotte district court; H. L. ALDEN, judge.

Judgment affirmed.

T. P Anderson, and True & True, for plaintiffs in error.

Pratt Dana & Black, for defendant in error.

OPINION

JOHNSTON, J.:

This was an action to recover for the death of James Matheson, an employee of the Kansas City, Fort Scott & Memphis Railroad Company, who was killed in Missouri on September 14, 1897, and whose death is alleged to have been caused by the wrong and neglect of coemployees. The action is brought by and for the benefit of the widow and children of the deceased, who claim to have a statutory right of recovery in Missouri, and one which is enforceable in Kansas. The Missouri statute pertaining to the subject was pleaded in the petition, but the trial court held the allegations of the petition to be insufficient, and that the rights of the plaintiffs under the Missouri statute could not be enforced in the courts of Kansas.

The plaintiffs' cause of action arises under a statute of Missouri providing for recovery for death by wrongful act, which declares that the company "shall forfeit and pay for every person or passenger so dying the sum of $ 5000, which may be sued for and recovered: First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased be the natural born or adopted child or children of the deceased," etc. (Rev. Stat. [Mo.] 1889, § 4425.) The right to recover for death caused by wrongful act is purely statutory, and there is a division of judicial opinion as to how far such causes of action may be enforced in states other than where the injury and death occurred. It is a general rule that statutes have no extraterritorial force, and there can be no recovery under a statute penal in its nature except in the state of its origin. Upon the grounds of comity, a cause of action arising in one state under a statute may be asserted in another where the latter gives the same right of action, and there is a substantial similarity in the statutes of the two states. If the Missouri statute is penal in its nature, and the right of recovery given by it is inconsistent with the policy and laws of this state, the action is not maintainable, and the decision of that question is controlled by former adjudications of this court.

In McCarthy, Adm'r, v. Railroad Co., 18 Kan. 46, it was expressly held that an administrator could not maintain an action in this state to recover for the injury and death of an employee of a railroad company in the state of Missouri, although the deceased was an inhabitant of Kansas. In Hamilton v. H. & St. J. Rld. Co., 39 Kan. 56 18 P. 57, the points of dissimilarity between the Missouri and Kansas statutes were noted, and it was held that the plaintiff in that action could not recover in Kansas for an injury which resulted in death in Missouri. The question was again considered in Dale v. Railroad Co., 57 Kan. 601, 47 P. 521. There a recovery was sought for a death that occurred in New Mexico, under a statute of that territory which is substantially similar in its terms to the Missouri statute under which recovery is sought in the present case. It was held that while the act was compensatory in part it was penal in its character, and that the principles of comity prevailing among the states do not go to the extent of enforcing in the courts of one state the penal statutes of another. Under the New Mexico statute, it was provided that the railway company should forfeit in every case the sum of $ 5000, without regard to...