Missouri, K. & T. Ry. Co. of Texas v. Kellerman

• Decision Date: 29 April 1905
• Citation: 87 S.W. 401
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. KELLERMAN.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

87 S.W. 401

MISSOURI, K. & T. RY. CO. OF TEXAS v. KELLERMAN.^*

Court of Civil Appeals of Texas.

April 29, 1905.

Appeal from District Court, Grayson County; J. M. Pearson, Judge.

Action by O. E. Kellerman against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

T. S. Miller and A. L. Beaty, for appellant. Wolf, Hare & Maxey, for appellee.

BOOKHOUT, J.

This was a suit for damages on account of personal injuries sustained by the plaintiff while employed by the defendant as a switchman, and the trial resulted in a verdict and judgment in his favor for $6,500, from which the defendant appeals.

The petition showed that the plaintiff resided in the state of Kansas, that the defendant was incorporated by virtue of the laws of Kansas, and that the injury complained of was sustained in the city of Parsons, within said state. The defendant interposed a plea to the jurisdiction, setting up these facts as a reason why the district court of Grayson county ought not to take jurisdiction of and try the cause. The plea further alleged that the statute of Kansas creating the cause of action was different from the statute of Texas on the same subject, and that it will work a great hardship upon defendant, and cause additional expense, and a deprivation of many valuable rights of procedure, to have the cause tried here. The defendant, in support of its plea, read in evidence the following statutes of Kansas (Gen. St. 1901):

"8014. Common Law—The common law as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, shall remain in force in aid of the general statutes of this state; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state, but all such statutes shall be liberally construed to promote their object."

"1923. Jurisdiction. 1.—There shall be in each county organized for judicial purposes a district court, which shall be a court of record, and shall have general jurisdiction of all matters, both civil and criminal (not otherwise provided by law), and jurisdiction in cases on appeal and error from all inferior courts and tribunals, and shall have general supervision and control of all such inferior courts and tribunals, to prevent and correct errors and abuses."

"1952. Fourteenth District. 26a.—The counties of Labatte and Montgomery shall constitute the Fourteenth Judicial District and terms of court shall be held therein commencing in each year, as follows: In Labatte county on the first Monday in February, April, June and November; and in Montgomery county on the first Monday in March, May, October and December."

"4732. Verdicts, General and Special.— The verdict of the jury is either general or special. A general verdict of the jury is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury finds facts only. It must present the facts as established by the evidence, and not the evidence to prove them; and they must be so presented as that nothing remains to the court but to draw from them conclusions of law."

"4724. View by the Jury.—Whenever, in the opinion of the court, it is proper for the jury to have a view of the property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted in a body under the charge of an officer to the place, which shall be shown to them by some person appointed by the court for that person. While the jury are thus absent, no person other than the person so appointed shall speak to them on any subject connected with the trial."

Also the statutes fixing the fees of the clerk of the district court and that fixing the fees of stenographers.

The defendant read in evidence the decisions of the Supreme Court of Kansas in the following cases, published in the Supreme Court Reports of Kansas, or in the Pacific Reporter, published by West Publishing Company, which decisions were agreed to as being duly authenticated and authorized: Railway v. Rollins, 5 Kan. 167; Sawyer v. Sauer, 10 Kan. 466; Railway v. Houts, 12 Kan. 328; Railway v. Blevins, 26 Pac. 689. It was agreed that the record should not be incumbered with these decisions in full, but that the same should be considered as though set out in full as they appear in the Kansas Reports and Pacific Reporter.

The defendant offered in evidence the following statute of Kansas, shown to have been in force since prior to 1901: "4871. Action for Death; Limitation, etc.—When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission. This action must be commenced within two years. The damages cannot exceed ten thousand dollars, 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 the deceased." The court ruled this evidence was irrelevant and immaterial and excluded it, to which ruling defendant excepted.

Plaintiff introduced in evidence section 5858 of the statute of Kansas, reading: "Every railroad company organized or doing business in this state, shall be liable for all damage done to any employé of said company in consequence of any negligence of its agents or of any mismanagement of its engineers, or other employés to any person sustaining such damage."

The appellee read in evidence the following decisions of the Supreme Court of Kansas: City of Emporia v. Kowalski, 71 Pac. 232; Union Pacific Ry. Co. v. Young, 19 Kan. 488; Atchison, T. & S. F. Ry. Co. v. Koehler, Adm'r, etc., 15 Pac. 567; Railway Co. v. Holt, 29 Kan. 149; Brower v. Timreck, 71 Pac. 589; Atchison, T. & S. F. Ry. Co. v. Kingscott, 69 Pac. 184; Atchison, T. & S. F. Ry. Co. v. Bancord, 71 Pac. 253; Swift & Co. v. Creasey, 61 Pac. 314.

It was agreed that the Missouri, Kansas & Texas Railway Company operated a line of railroad extending from Red river south into the city of Denison, and from Warner Junction on the main line to Ray Yards, west of the city of Denison, and in conjunction with the Missouri, Kansas & Texas Railway Company of Texas operates lines between Ray Yards and the depot yards, roundhouses and machine shops in Denison; that these lines are owned by the Texas Company; that the Missouri, Kansas & Texas Railway Company and the Missouri, Kansas & Texas Railway Company of Texas are operated under the designation as the Missouri, Kansas & Texas Railway System; that the ticket agent in Denison had authority to and did sell tickets from Denison north, good over the Missouri, Kansas & Texas Railway Company and from Denison south, good over the Missouri, Kansas & Texas Railway Company of Texas, and is the joint agent of the two roads, as is also the freight agent in Denison.

The rule recognized by the courts of this state is that a right of action given by the statute of another state will be enforced in this state if our statutes give a similar right under the same state of facts. Railway Co. v. Richards, 68 Tex. 375, 4 S. W. 627; Railway Co. v. McCormick, 71 Tex. 660, 9 S. W. 540, 1 L. R. A. 804; Railway Co. v. Jackson, 89 Tex. 107, 33 S. W. 857, 31 L. R. A. 276, 59 Am. St. Rep. 28. The statutes of this state make railway companies liable to their servants for injuries occasioned by the neglect of their fellow servants while engaged in operating their trains. The state of Kansas has a statute creating a liability against a railway company for damage done to an employé in consequence of any mismanagement of its engineers or other employés to any person sustaining such damage. Are the statutes of Kansas and Texas giving this right similar? It is not necessary that the statutes should be identical. In Leonard v. Navigation Company, 84 N. Y. 48, 38 Am. Rep. 491, it is said: "It is not essential that the statutes should be precisely the same as that of the state where the action is given by law, or where it is brought, but merely requires that it should be of a similar import or character." In Nelson v. Ry. Co., 88 Va. 971, 14 S. E. 838, 15 L. R. A. 583, the court cites and adopts the language used in the Leonard case. Morris v. Railway Co., 65 Iowa, 727, 23 N. W. 143, 54 Am. Rep. 39, is a case where the administrator sued the railroad company in Iowa for damages for negligently causing the death of his intestate in Illinois. The statute of Illinois limits the liability of railroad companies to $5,000. No such limit was found in the statutes of Iowa. By the statutes of Illinois the recovery was for the benefit of the widow and next of kin, while in Iowa it was to be disposed of as other personal property. The Supreme Court of Iowa held that they had no jurisdiction to try the case, and that it should be disposed of according to the laws of Illinois, and that it was not necessary that the two statutes should be identical, but it was sufficient for them to be of similar import or character. We conclude that the statute of this state and the statute of Kansas, making railroad companies liable to their servants for injuries caused by the negligent act of their fellow servants engaged in operating their trains, are similar, and that it is the duty of the courts of this state, when jurisdiction has been obtained over the parties, to enforce the right arising under the Kansas statute. Dennick v. Ry. Co., 103 U. S. 11, 26 L. Ed. 439; Ry. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; Ry. Co. v. Babcock, 154 U. S. 190, 14 Sup. Ct. 978, 38 L. Ed. 958; Huntington v. Attrill, 146 U. S. 670, 13 Sup. Ct. 224, 36 L. Ed. 1123; Herrick v. Ry. Co., 31 Minn. 11...