Missouri, Kansas Texas Pailway Company v. Sallie Wulf, No. 517

CourtUnited States Supreme Court
Writing for the CourtPitney
Citation226 U.S. 570,57 L.Ed. 355,33 S.Ct. 135
Docket NumberNo. 517
Decision Date06 January 1913
PartiesMISSOURI, KANSAS, & TEXAS PAILWAY COMPANY, Plff. in Err., v. SALLIE C. WULF

226 U.S. 570
33 S.Ct. 135
57 L.Ed. 355
MISSOURI, KANSAS, & TEXAS PAILWAY COMPANY, Plff. in Err.,

v.

SALLIE C. WULF.

No. 517.
Argued and submitted December 3, 1912.
Decided January 6, 1913.

Page 571

Messrs. James Hagerman, Joseph M. Bryson, Alexander S. Coke, and A. H. McKnight for plaintiff in error.

Messrs. Judson H. Wood and James P. Haven for defendant in error.

Mr. Justice Pitney delivered the opinion of the court:

The defendant in error, Sallie C. Wulf, in her individual capacity, commenced this action January 23, 1909, in the circuit court of the United States for the eastern district of Texas, to recover damages by reason of the death of her son, Fred S. Wulf, which occurred November 27, 1908, while he was in the employ of the defendant (now plaintiff in error) as a locomotive fireman, and in the performance of his duties as such upon a train bound

Page 572

from Parsons, in the state of Kansas, to Osage, in the state of Oklahoma. The original petition set up diversity of citizenship, plaintiff being alleged to be a bona fide inhabitant, resident, and citizen of Texas, and the defendant a corporation organized under the laws of the state of Kansas. For cause of action it was averred that the decedent's death was the result of a bursting of the locomotive boiler, due to defects therein attributable to the negligence of the employer. It was further averred that 'plaintiff is the mother of the said Fred S. Wulf, and is a feme sole, and the said Fred S. Wulf was an unmarried man, leaving no wife or children surviving. That his father died prior to the time that he died, and plaintiff is the sole heir, next of kin, and beneficiary of the estate of the said Fred S. Wulf, deceased. That there is no administration pending on the said estate of the said Fred S. Wulf within this state (Texas) or elsewhere, and that none is necessary. That said decedent was a resident citizen of the state of Texas when he was killed, but was temporarily working in Kansas. That by virtue of the laws of the state of Kansas, where the said Fred S. Wulf was killed, a right of action is provided by statute for injuries resulting in death.' The plaintiff demanded $40,000 damages. On May 19, 1909, defendant filed its original answer, consisting of a general demurrer, a general denial of the allegations of the petition, and averments that the injuries complained of were proximately caused and contributed to by deceased's own negligence and want of ordinary care and by that of his fellow servants. No action appears to have been taken upon this pleading; but on January 6, 1911, defendant filed its first amended answer, consisting of a general demurrer; a special demurrer to the claim of $40,000 damages, on the ground that under the laws of Kansas the damages were limited to $10,000; and averments that at the time of the injury and death of deceased, defendant was engaged in interstate commerce,

Page 573

and deceased was in its employ and was himself engaged in interstate commerce, and that the cause of action is not governed by the laws of Kansas, but arises out of the Federal employers' liability act of 1908 [35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1911, p. 1322]. There were also a general denial of the allegations of the petition, and an averment of contributory negligence on the part of the deceased and of his fellow servants. Upon the same day (January 6, 1911), the plaintiff filed her first amended original petition, averring that she was the sole heir and next of kin of Fred S. Wulf, deceased; that at the time of the filing of the original petition there was no administration upon his estate and no necessity for any; that on January 4, 1911, she was duly appointed temporary administratrix of his estate by the county court of Grayson county, Texas, a court of competent jurisdiction, and qualified as such, with full power and authority to prosecute this suit as party plaintiff, and had made application to be appointed permanent administratrix. 'That there now exists no necessity for an administration upon the estate of the said Fred S. Wulf, unless the same should be necessary for the sole purpose of prosecuting this suit as administratrix of said decedent for the benefit of herself as the surviving parent and next of kin of the said decedent; said plaintiff being the next of kin and sole beneficiary of whatever may be recovered in this suit. She therefore sues in her original capacity as such sole beneficiary and next of kin; but in the event it shall be determined that she is not...

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346 practice notes
  • Renn v. Seabd. Air Line Ry, (No. 259.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 17, 1915
    ...of action under the state law. Mondou v. Railroad, 223 U. S. 1, 32 Sup. Ct 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, Railroad v. Wulf, 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134, and Wabash R. R. Co. v. Hayes, 234 U. S. 86, 34 Sup. Ct. 729, 58 L. Ed. 1226. In the ......
  • Sears v. Texas & N. O. Ry. Co., (Nos. 445-3934.)
    • United States
    • Supreme Court of Texas
    • November 26, 1924
    ...U. S. 333, 36 S. Ct. 558, 60 L. Ed. 1030; Davis v. Green, 260 U. S. 349, 43 S. Ct. 123, 67 L. Ed. 299; Missouri, etc., Ry. Co. v. Wulf, 226 U. S. 570, 33 S. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134; Seaboard, etc., Ry. v. Duvall, 225 U. S. 477, 32 S. Ct. 790, 56 L. Ed. 1171; Hours of Se......
  • York v. Guaranty Trust Co. of New York, No. 256.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 25, 1944
    ...305, 307; In re Plymouth Cordage Co., 8 Cir., 135 F. 1000, 1003; Gregg v. Gier, Fed.Cas.No.5,799; Missouri, Kansas & Texas R. Co. v. Wulf, 226 U.S. 570, 576, 33 S.Ct. 135, 57 L.Ed. 355; Atwood v. National Bank of Lima, 6 Cir., 115 F.2d 861, 863: New York Cent. & H. R. R. Co. v. Kinney, 260 ......
  • Ivy v. Security Barge Lines, Inc., No. 76-4130
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 4, 1978
    ...v. Delaware, Lackawanna & Western R.R., 1913, 227 U.S. 434, 33 S.Ct. 274, 57 L.Ed. 586; Missouri, Kansas & Texas Ry. v. Wulf, 1913, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. The trial judge, therefore, erred in deciding that the plaintiff had procedural capacity to bring this action. Whether Rul......
  • Request a trial to view additional results
346 cases
  • Renn v. Seabd. Air Line Ry, (No. 259.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 17, 1915
    ...of action under the state law. Mondou v. Railroad, 223 U. S. 1, 32 Sup. Ct 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, Railroad v. Wulf, 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134, and Wabash R. R. Co. v. Hayes, 234 U. S. 86, 34 Sup. Ct. 729, 58 L. Ed. 1226. In the ......
  • Sears v. Texas & N. O. Ry. Co., (Nos. 445-3934.)
    • United States
    • Supreme Court of Texas
    • November 26, 1924
    ...U. S. 333, 36 S. Ct. 558, 60 L. Ed. 1030; Davis v. Green, 260 U. S. 349, 43 S. Ct. 123, 67 L. Ed. 299; Missouri, etc., Ry. Co. v. Wulf, 226 U. S. 570, 33 S. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134; Seaboard, etc., Ry. v. Duvall, 225 U. S. 477, 32 S. Ct. 790, 56 L. Ed. 1171; Hours of Se......
  • York v. Guaranty Trust Co. of New York, No. 256.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 25, 1944
    ...305, 307; In re Plymouth Cordage Co., 8 Cir., 135 F. 1000, 1003; Gregg v. Gier, Fed.Cas.No.5,799; Missouri, Kansas & Texas R. Co. v. Wulf, 226 U.S. 570, 576, 33 S.Ct. 135, 57 L.Ed. 355; Atwood v. National Bank of Lima, 6 Cir., 115 F.2d 861, 863: New York Cent. & H. R. R. Co. v. Kinney, 260 ......
  • Ivy v. Security Barge Lines, Inc., No. 76-4130
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 4, 1978
    ...v. Delaware, Lackawanna & Western R.R., 1913, 227 U.S. 434, 33 S.Ct. 274, 57 L.Ed. 586; Missouri, Kansas & Texas Ry. v. Wulf, 1913, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. The trial judge, therefore, erred in deciding that the plaintiff had procedural capacity to bring this action. Whether Rul......
  • Request a trial to view additional results

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