Montague v. Missouri & Kansas Interurban Railway Company

• Decision Date: 19 July 1921
• Citation: 233 S.W. 189,289 Mo. 288
• Parties: WILLIAM A. MONTAGUE, Appellant, v. MISSOURI & KANSAS INTERURBAN RAILWAY COMPANY et al
• Court: Missouri Supreme Court

233 S.W. 189

289 Mo. 288

WILLIAM A. MONTAGUE, Appellant, v. MISSOURI & KANSAS INTERURBAN RAILWAY COMPANY et al

Supreme Court of Missouri, Second Division

July 19, 1921

Appeal from Jackson Circuit Court. -- Hon. O. A. Lucas, Judge.

Reversed and remanded (with directions).

Kelly Buchholz, Kimbrell & O'Donnell and Lyon & Lyon for appellant.

(1) The court erred in sustaining defendant's motion to strike out for the reason that the petition, as amended by interlineation, did not operate to change the plaintiff's cause of action and did not constitute a departure. Hanson v. Springfield Traction Co., 226 S.W. 1; Madden v. Mo. Pac. Ry. Co., 192 S.W. 455; Lee v Mo. Pac. Ry. Co., 195 Mo. 400, 415; L. & N. Railway v. Pointers, 69 S.W. 1108; Texas & N. O. Railway v Gross, 128 S.W. 1173; Railroad v. Foster, 78 Tenn. 351; De Valle Da Costa v. Southern Pac. Co., 176 F. 843; Lustig v. Railway, 65 Hun, 547, 20 N.Y.S. 477; Cunningham v. Patterson, 89 Kan. 684; Texas & N. O. Railroad v. Miller, 221 U.S. 408, 417; Neubeck v. Lynch, 37 App. D. C. 576; Robinson v. Railway, 133 P. 537; Shroeder v. Edwards, 205 S.W. 47; Martin v. Cotton Oil Co., 194 Mo.App. 106; Breslauer v. Barwick, 36 L. T. 52. (2) The court erred in striking out and sustaining defendant's motion to strike out plaintiff's petition for the reason that by doing so the court has prevented any recovery by the plaintiff, for the reason that the Missouri statute (Sec. 1324, R. S. 1919) prevents the maintenance of a new action against defendants, as a new action based on the Kansas statutes is barred by the Statute of Limitations of both states. Bowen v. Buckner, 171 Mo.App. 384; Lottman v. Barnett, 62 Mo. 170; Lilly v. Tobbein, 103 Mo. 490; Courtney v. Blackwell, 150 Mo. 271. (3) Even had there been a departure, it was a departure made necessary by the allegation of the defendant in its amended answer, and it cannot be heard to urge that an amendment to a pleading, which its act and that of the court made necessary, should be stricken out. Lemon v. Chanslor, 68 Mo. 340; Oakley v. Richards, 204 S.W. 505; Sonnefeld v. Rosenthal, 247 Mo. 238; Frederickson v. Renard, 247 U.S. 207; Irwin v. Childs, 28 Mo. 578; Laughlin v. Leigh, 226 Mo. 620; Little River D. D. v. Railway, 236 Mo. 94. (4) The court erred in assuming jurisdiction to strike out the plaintiff's petition as amended by interlineation, after said amendment had been made pursuant to leave granted by the court while the order granting the leave to amend was not revoked. Critchfield v. Linville, 140 Mo. 191; Broyles v. Eversmeyer, 262 Mo. 384.

Reed & Harvey for respondent.

(1) The court properly sustained defendants' motion to strike out the amended petition as a departure, and, plaintiff declining to plead further, in dismissing the petition, for the following reasons: The Missouri and Kansas statutes do not vest a cause of action for wrongful death in the same person. The Missouri statute vests the right of recovery absolutely in the husband; the Kansas statute does not vest a right of action in the husband at all. Sec. 4217, R. S. 1919; Sections 7323 and 7324, General Statutes of Kansas, Railway Co. v. Ryan, 62 Kan. 682; Shawnee v. Motesenbacher, 138 P. 790; Jeffries v. Farmers' Union, 103 Kan. 782; Jones v. Railway Co., 178 Mo. 541. (2) So absolutely different is the Kansas statute from the Missouri statute that the courts of Kansas will not enforce the Missouri act. Mathewson v. Ry. Co., 61 Kan. 667; Metrokas v. Ry., 137 P. 953. (3) So absolutely different is the Kansas statute from the Missouri statute that under the former a plaintiff may not settle his case. Jeffries v. Farmers' Union, 103 Kan. 787, 176 P. 631. (4) The same evidence does not support both petitions, nor is the measure of damages the same. Liese v. Meyer, 143 Mo. 555; Cytron v. Transit Co., 205 Mo. 703; Grigsby v. Barton, 169 Mo. 225; Scoville v. Glasner, 79 Mo. 449; Vaughan v. Ry., 65 Kan. 685. (5) The Kansas statute is a reproduction of Lord Campbell's Act; the Missouri statute is not. Crumpley v. Railroad, 98 Mo. 34; King v. Ry. Co., 98 Mo. 235.

OPINION

WALKER, J.

This is an action brought in the Circuit Court of Jackson County, for damages for the death of plaintiff's wife, by reason of the alleged negligence of the defendants. The latter, in addition to the Railway Company, are E. K. Brown and Charles F. Dinklage, doing business as the Automobile Livery Company. The substantial allegations of the plaintiff's petition are that the defendant Railway Company was, at the time of the accident which resulted in the death of plaintiff's wife, operating a line of interurban railway, between Kansas City, Missouri, and Olathe, Kansas; that the individual defendants were at the time operating an automobile line for the carrying of passengers for hire, between Rosedale, Kansas, and Kansas City, Missouri; that plaintiff's wife at the time of the accident was a passenger on one of said automobiles for the purpose of being carried from the Elm Ridge Golf Club, in Kansas, to her home in Kansas City, Missouri; that the individual defendants, thus operating said automobile line, engaged and undertook to carry plaintiff's wife as a passenger from said golf club to her home; that while said automobile in which plaintiff's wife was at the time being carried was moving eastwardly at a point in said city of Rosedale, and was approaching a point on 43rd Street, in said city, where the tracks of the defendant Railway Company crossed said street, an employee of the individual defendants so negligently and carelessly operated said automobile that it collided with one of the railway defendant's cars, then and there being operated by employees of said Railway Company; that as a result of said collision, plaintiff's wife was thrown violently to the ground and her skull crushed, from which injury she died; that her death was caused by the negligence of the defendant Railway Company and the individual defendants, acting through their servants, agents and employees; that the motorman in charge of the street car of the defendant Railway Company was negligent, in that he failed and omitted to give any warning while approaching 43rd Street, or while crossing the same; that he was, at the time, negligently and carelessly operating said street car at a high, reckless and dangerous rate of speed. That an ordinance of the city of Rosedale prohibited said defendant railway company from operating its cars at a point where plaintiff's wife received her injuries, at a greater rate of speed than fifteen miles per hour.

Other allegations of the negligence of said motorman are, that he failed to keep said street car under reasonable control so as to avoid a collision with vehicles that might be passing along 43rd Street and across the tracks of said street car line; that by the exercise of reasonable care he could have seen said automobile approaching the point where said street car tracks crossed said street and could have stopped said car or slackened its speed in time to have avoided a collision with said automobile; that by the exercise of ordinary care, said motorman realized or could have realized that, if he did not stop or slacken the speed of said car, said collision would occur; and that he failed and neglected so to do.

Actual damages for $ 10,000 are asked against the defendants.

On the day the case was set for trial, the defendant Railway Company, having theretofore filed as its answer a general denial and a plea of contributory negligence, filed by leave of court an amended answer, alleging that the accident which resulted in the death of plaintiff's wife occurred in the State of Kansas, and that there was at the time no statute in force in that State similar to the Missouri statute under which the plaintiff brought his suit, and that he had, therefore, no right of action under the laws of this State. In this amended answer the plea of contributory negligence was abandoned, and the allegation concerning the Kansas statute substituted. On the same day the plaintiff, by leave of court, filed an amended petition, which was the same as the original, except that it was alleged therein that certain statutes, to-wit, Sections 7323 and 7324 and Section 11829, were in force in the State of Kansas at the time of the accident, as follows:

"Section 7323. 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. The 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.

"Section 7324. That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in the next preceding section, is or has been at the time of his death in any other state or territory, or when, being a resident of this State, no personal representative is or has been appointed, the action provided in said action may be brought by the widow, or where there is no widow, by the next of kin of such deceased.

"Section 11829. The common law as modified by the constitutional and statutory law, judicial decisions and the conditions 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 in this State, but such statutes shall be liberally construed to promote their...