Mathieson v. St. Louis & S. F. Ry. Co.

• Citation: 118 S.W. 9,219 Mo. 542
• Court: United States State Supreme Court of Missouri
• Decision Date: 25 February 1909
• Parties: MATHIESON v. ST. LOUIS & S. F. RY. CO.

118 S.W. 9

219 Mo. 542

MATHIESON v. ST. LOUIS & S. F. RY. CO.

Supreme Court of Missouri, Division No. 1.

February 25, 1909.

Rehearing Denied March 13, 1909.

1. EVIDENCE (§ 35)—JUDICIAL NOTICE—STATUTES OF OTHER STATES.

The courts of this state do not take judicial notice of the statute of another state.

2. PLEADING (§ 376) — ISSUES — ADMISSIONS BY REPLY.

Where the answer pleads the entire statute on which the action is founded, and the reply admits the truthfulness of such plea, the entire statute is before the court, though the petition contains only a portion thereof.

3. MASTER AND SERVANT (§ 256)—INJURY TO SERVANT — ACTION — SUFFICIENCY OF PETITION —NOTICE OF INJURY.

A petition against a railroad company for injuries to an employé, under a statute making railroad companies liable for injuries to any employé through the negligence of its agents or employés if he gives "notice in writing of the injury so sustained," is insufficient if it fails to allege the giving of such notice.

4. APPEAL AND ERROR (§ 171)—REVIEW— SCOPE AND THEORY OF CASE.

Where an action was tried as if based on a statute, plaintiff will not be allowed, on review, to base the action on the common law.

5. COMMON LAW (§ 11)—TERRITORY SUBJECT TO.

The territory which now composes the state of Kansas, having been acquired by the United States under a treaty with France, was never subject to the common law of England.

6. EVIDENCE (§ 80) — PRESUMPTIONS — COMMON LAW.

The presumption that the common law is in force in another state applies only to those states which were carved out of English territory.

7. STATUTES (§ 281)—PLEADING STATUTES.

To be available in an action in the state, a statute of another state adopting the common law must be pleaded.

8. PLEADING (§ 180)—SUFFICIENCY OF PETITION —AIDER BY REPLY.

Plaintiff must recover, if at all, on the cause of action stated in the petition, and not on one stated in the reply.

Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

Action by William A. Mathieson against the St. Louis & San Francisco Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

This cause was begun in the circuit court of Jackson county to recover damages for personal injuries alleged to have been sustained by plaintiff, on December 1, 1903, whilst he was employed as a member of a switching crew working in defendant's yards in Kansas City, Kan. A trial was had which resulted in a judgment for plaintiff for the sum of $15,000, and defendant duly appealed the cause to this court. The petition, in substance, alleged the incorporation of the defendant; that on the 1st day of December, 1903, plaintiff was employed as a switchman in the defendant's yards in Kansas City, Wyandotte county, Kan., and was engaged on said day in switching freight cars into the packing plant of the Fowler Packing Company; that plaintiff was a member of a switching crew under the charge and control of an agent, servant, and vice principal of defendant named Merten, and that in the course of his employment plaintiff was upon a string of freight cars being switched into said plant, and Merten was alongside of said cars; that he (Merten) notified the plaintiff that he was about to uncouple the last two cars, and plaintiff was thereupon proceeding along the top of such string of freight cars, relying upon the notification of said Merten, and was passing from the top of the third car to the top of the fourth car when said Merten carelessly and negligently, and without warning to plaintiff, uncoupled the cars between said third and fourth cars, thereby causing said cars to separate, and causing said plaintiff to fall to the track below, striking upon the cross-ties, and wounding him as thereinafter set out. The petition further alleged as follows: That at all times hereinafter mentioned it was and is provided by the laws of the state of Kansas, as follows: "Every railroad company organized or doing business in this state shall be liable for all damages to any employé of such 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." "That said injuries to plaintiff were directly caused by the carelessness and negligence of the defendant, its agents, servants and employés, in this: That said foreman, Merten, carelessly, negligently, and unskillfully, and without warning to plaintiff, uncoupled said freight cars at a point where plaintiff was passing from one of said cars to the other, where he knew, or by the exercise of reasonable care might have known, that plaintiff was in a position of imminent peril upon the tops of said cars, and engaged in passing from the one to the other; that said Merten carelessly, negligently, and unskillfully, and without warning to plaintiff, uncoupled the third car from the fourth car, after having notified the plaintiff that he was about to cut off but two of said cars, thereby cutting off three of said cars, although he knew, or by the exercise of reasonable care might have known that plaintiff was in a position of peril, passing along the tops of said cars, and liable to be thrown thereby to the track below." The petition alleges that by reason of the foregoing negligently acts of the defendant, its agent, servant, vice principal, and foreman, Merten, the plaintiff was thrown from his position on top of said freight cars, and fell to the cross-ties, and thereby his feet, and the bones, muscles, flesh, cords, and sinews thereof, were bruised, crushed, sprained, and broken, and the arches of both feet were broken, so that the insteps were sunken and depressed, and that plaintiff has suffered, and will in the future continue to suffer, great pain and anguish of mind and body, and had lost all of his time and earnings, and will continue to lose them in the future; that such injuries were permanent, and that plaintiff's earning capacity had been entirely destroyed, all to his damage in the sum of $15,000, for which judgment was prayed. The answer of the defendant contained a general denial, a plea of contributory negligence, and a plea of assumption of risk. It also contained the following allegations: "(4) For a fourth and further answer and defense to said amended petition defendant avers that plaintiff has stated in said petition that he was working for defendant in and about its yards and connections in Wyandotte county, Kan., and that at the time he was injured he was working in said Wyandotte county, Kan., and the accident of which plaintiff complains in his petition happened in said county and state of Kansas. Defendant further avers that the law of the state of Kansas set up in said amended petition was amended on March 4, 1903, by the Legislature of the state of Kansas, and as amended is as follows: `Every railroad company organized or doing business in this state 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 of the injury so sustained, stating the time and place thereof, shall have been given by or on behalf of the person injured to such railroad company within ninety days after the occurrence of the accident.' Defendant further avers that plaintiff has failed to comply with said law of the state of Kansas, in that he has failed to give to defendant, within 90 days after the occurrence of said accident, any notice of the injury sustained by him, stating the time and place thereof, and that by reason thereof plaintiff cannot recover herein." The reply filed by the plaintiff denied the allegations of the defendant's answer, and further pleaded that the plaintiff had given notice to the defendant within 90 days after the occurrence of the accident.

W. F. Evans, I. P. Dana, and W. J. Orr, for appellant. Walsh & Morrison and Virgil Conkling, for respondent.

WOODSON, J. (after stating the facts as above).

1. Counsel for appellant insists that the petition filed herein does not state facts sufficient to constitute a cause of action. This action is based upon the statute of Kansas, set out in full in appellant's answer. By reading the petition it will be seen that all of that part of the statute beginning with the word "provided" and ending with the word "accident" was not pleaded in the petition. The law is too well...