McGinnis v. Missouri Car & Foundry Co.

• Decision Date: 18 March 1903
• Court: Missouri Supreme Court
• Parties: McGINNIS v. MISSOURI CAR & FOUNDRY CO.

73 S.W. 586

174 Mo. 225

McGINNIS v. MISSOURI CAR & FOUNDRY CO.

Supreme Court of Missouri, Division No. 1.

March 18, 1903.

DEATH BY WRONGFUL ACT—RIGHT OF ACTION —WHO MAY SUE—SUIT BY WIDOW.

1. 2 Starr & C. Ann. St. Ill. pp. 2155, 2156, c. 70, pars. 1, 2, gives a right of action for death by wrongful act, and provides that an action therefor shall be brought in the name of the personal representatives of the deceased person. Rev. St. Mo. 1899, § 548, provides that, when a cause of action has accrued under the laws of any other state, and the persons entitled to the benefit are not authorized by such law to prosecute the action in their own names, an action for such cause may be brought in any court of this state by a person appointed by the court. An employé of defendant while at work in Illinois was killed, as alleged by defendant's negligence, and on petition of his widow plaintiff was appointed by the court to prosecute this action to recover therefor. Held, that the action authorized by the Illinois statute can be prosecuted only by the persons authorized by such statute, and section 548, attempting to give that right to another, is void.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by W. T. McGinnis, suing for Delia Callahan and others, against the Missouri Car & Foundry Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This is an action for damages for personal injuries to Daniel Callahan on December 27, 1898, at the town of Madison, Ill., which resulted in his immediate death. The deceased was an employé of the defendant. The negligence charged is that the defendant allowed the electric wires by which its building at Madison, Ill., was lighted, to come in contact with the shift wires that the deceased had to catch hold of in the course of his duties, which gave the deceased an electric shock that caused his death. The answer is a general denial, and a special plea that McGinnis has no right to maintain this action. The injury and death occurred in the state of Illinois, and the right of action is predicated upon a law of that state (paragraphs 1, 2, c. 70, 2 Starr & C. Ann. St. Ill. pp. 2155, 2156), whilst the action is brought in this state under the act of 1891 (now section 548, Rev. St. 1899), and, as the case at bar hinges entirely upon a construction of these statutes, they are set out in full. The Illinois statute is as follows:

"Paragraph 1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the injured party to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.

"Par. 2. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin, in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person, not exceeding the sum of $5,000; provided, that every such action shall be commenced within two years after the death of such person."

The statute of this state is as follows:

"Sec. 548. Parties not Authorized to Sue, Court may Appoint. Whenever any cause of action has accrued under or by virtue of the laws of any other state or territory, and the person or persons entitled to the benefit of such cause of action are not authorized by the laws of such state or territory to prosecute such action in his, her or their own names, then, in every such case, such cause of action may be brought in any of the courts of this state, by a person to be appointed for that purpose by the court in which such cause of action is sought to be instituted, or the clerk thereof in vacation, and such person so appointed may institute such action and prosecute the same for the benefit of the person or persons entitled to the proceeds thereof under the laws of the state or territory wherein the cause of action arose."

Before the institution of this suit, Delia Callahan, the widow of the deceased, filed a petition asking the appointment of McGinnis under the section of the statute quoted, and the appointment was duly made.

There was a direct and sharp conflict in the evidence on the question of the cause of the accident, and likewise as to whether the deceased received any such injuries as are alleged, or whether he died from heart disease; but, as no point is made by the defendant in this court with respect to any question except the right of McGinnis to maintain this action, it is unnecessary to refer to any other branch of the case. There was a verdict and judgment for the plaintiff for $1,000, and the defendant appealed.

Seddon & Blair and Robt. A. Holland, Jr., for appellant. Kinealy & Kinealy, for respondent.

MARSHALL, J. (after stating the facts).

1. The contention of the defendant is that no right of action in a case like this existed at common law; that the right is purely statutory; that the state of Illinois created the right, and prescribed who should bring the suit, and how the proceeds should be distributed; that the statute of Missouri has no extraterritorial force, and could not authorize a right created by the laws of Illinois to be enforced by any one else than the person who is authorized by the laws of Illinois to enforce it, and therefore McGinnis has no right to maintain this action.

Vawter v. Railroad, 84 Mo. 679, 54 Am. Rep. 105, was an action for damages, based upon the statute of Kansas, which is substantially like the Illinois statute, and which prescribed that the administrator should bring the action. The plaintiff was appointed administratrix in this state. It was held that she could not maintain the action; that the laws of this state expressly deny to an administrator a right to maintain such an action; that the Kansas administrator could not maintain such an action here, because he has no extraterritorial rights.

In Oates v. Railroad, 104 Mo. 514, 16 S. W. 487, 24 Am. St. Rep. 348, the widow brought the action. The accident occurred in Kansas. It was held that the cause of action was created by the statute of Kansas, and that statute which created the right prescribed who should enforce the right, to wit, the personal representative, and that no other person could maintain the action.

In the Vawter Case it was noted that the St. Louis Court of Appeals (Stoeckman, Adm'r, v. Railroad, 15 Mo. App. 503), the New York courts (Leonard, Adm'r, v. Navigation Co., 84 N. Y. 48, 38 Am. Rep. 491). and the Supreme Court of the United States (Dennick v. Railroad, 103 U. S. 11, 26 L. Ed. 439), had held that a personal representative appointed in the state where the action was brought could maintain an action based upon such a statute of another state, the reasoning employed in those cases being that the foreign statute created the right, and prescribed that the personal representative should bring the suit, but the right thus created was transitory, and the statute did not say the suit should be brought by an administrator appointed in the state that created the right, and therefore an administrator appointed in the state where the suit was brought filled the requirements of the statute; but it was held that those cases were not supported by the weight of authority, and the reasoning employed therein could...