Oates v. Union Pac. Ry. Co.

• Citation: 16 S.W. 487,104 Mo. 514
• Parties: OATES v. UNION PAC. RY. CO.
• Decision Date: 25 May 1891
• Court: United States State Supreme Court of Missouri

16 S.W. 487

104 Mo. 514

OATES v. UNION PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 25, 1891.

DEATH BY WRONGFUL ACT — CONFLICT OF LAWS.

A resident of Missouri was killed by a train in Kansas, under such circumstances that, had the accident occurred in Missouri, his wife could have recovered from the railroad company the forfeiture of $5,000 imposed by the second section of the damage act of that state. The Kansas statute provides that, "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." "The damages cannot exceed $10,000, 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." Held, that the wife could not recover, in an action in Missouri, though no administrator could be appointed in Kansas, because the deceased left no estate there, and though no action under the Kansas statute could be brought in either state by an administrator appointed in Missouri.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

Sherry & Hughes, for appellant. John W. Beebe, for respondent.

BLACK, J.

The petition discloses these facts: The defendant, the Union Pacific Railway Company, owns and operates a railroad in the state of Kansas, which extends into this state. The defendant's servants carelessly and negligently ran a train of cars upon J. M. Oates, at a point in the state of Kansas, inflicting injuries upon him from which he died the next day, namely, the 9th June, 1885. Oates was not in the employ of the defendant at the time he was injured, but he was in the employ of another railroad company. At and prior to his death he resided in this state, and he left surviving a widow and three minor children. Plaintiff, who is the widow of the deceased, brought this suit in the courts of this state for the death of her husband, laying her damages at the sum of $10,000, and founding her cause of action upon the statute laws of the state of Kansas, which are set out in the petition. The circuit court sustained a demurrer to the petition, and the sole question before us is whether the plaintiff can maintain this suit in the courts of this state. As the plaintiff founds her cause of action upon the statute law of the state of Kansas, and she is also forced to rely somewhat upon the statute laws of this state, we shall first set out in words or substance the statute laws of the two states. The statute of the state of Kansas, set out in the petition, is in these words: "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 the same act or omission. The action must be commenced within two years. The damages cannot exceed $10,000, 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." It is conceded that the words "personal representatives" mean the executor or administrator, and that, under the rulings of the supreme court of Kansas, the suit cannot be maintained by the widow and children, or by either, but must be brought by the executor or administrator, he to make distribution to the widow and children or next of kin. Had Oates received the injuries causing his death in this state, then, under the circumstances set out in the petition, the cause of action would come under the second section of our damage act, which fixes the amount of the forfeiture or damage at the sum of $5,000, to "be sued for and recovered — First, by the husband or wife of deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, by the minor child or children of the deceased; or, third, if such deceased be a minor and unmarried, then by the father and mother, who may join in the suit, and each shall...