Richter v. East St. Louis & S. Ry. Co.

• Court: U.S. District Court — Eastern District of Missouri
• Writing for the Court: FARIS
• Citation: Richter v. East St. Louis & S. Ry. Co., 20 F.2d 220 (E.D. Mo. 1927)
• Decision Date: 23 May 1927
• Docket Number: No. 7655.,7655.
• Parties: RICHTER v. EAST ST. LOUIS & S. RY. CO.

20 F.2d 220 (1927)

RICHTER v. EAST ST. LOUIS & S. RY. CO.

No. 7655.

District Court, E. D. Missouri, E. D.

May 23, 1927.

Benjamin J. Klene, of St. Louis, Mo., for plaintiff.

Holland, Rutledge & Lashly, of St. Louis, Mo., for defendant.

FARIS, District Judge.

Defendant demurs, for that (a) this action cannot be maintained in this court by the administrator under the law of Missouri, as applied to the facts set out in the petition; and (b) because the facts pleaded are not sufficient to constitute any cause of action against defendant.

These facts are few and simple. Plaintiff's decedent, a resident and citizen of Missouri in her lifetime, was killed in the state of Illinois, as it is said, by the negligence of the defendant's servants, employees and agents. Plaintiff was duly appointed administrator of her estate in Missouri, and in the city of her domicile and citizenship, and brought this action in the state circuit court of the city of St. Louis, whence it was duly removed to this court on account of diversity of citizenship. Under the Illinois statute an action for the negligent killing of a person by a common carrier can be maintained only by the administrator of him so killed. Under the law of Missouri, ordinarily, a local administrator cannot sue on such a cause of action in a state court of Missouri; certainly, when the cause of action arises in Missouri, and under the laws thereof; but such an action must be brought by certain parties who are named in the Missouri statute. Under certain contingencies, set out in the present statute (section 4217, R. S. Mo. 1919), an administrator may now sue.

The question touching who may bring and maintain an action in the state circuit courts of Missouri is of course a question as to which the construction put by the Missouri Supreme Court on the applicatory statutes of Missouri becomes and is the paramount law. There is a Missouri statute on the subject (section 98, R. S. Mo. 1919), which formerly, at least, denied administrators the right to maintain an action of this sort, subject, now, of course, in a proper case, to any change worked by the 1905 amendment to section 4217, R. S. Mo. 1919. From the former Missouri decisions construing section 98, supra, it seems clear that an administrator, appointed by the probate court of a county of Missouri, could not, before the amendment of 1905, have brought or maintained an action in a state court of Missouri for damages for the negligent killing of a person in this state. No one contends to the contrary.

It seems equally clear, under the Missouri ruled cases, that such local administrator could not before such amendment, have sued in such case in a Missouri state court, even though the death of his decedent happened, and thus the cause of action arose, in another state, wherein alone, as here, an administrator must sue. Vawter v. Mo. P. Ry. Co., 84 Mo. 679, 54 Am. Rep. 105; Oates v. Union Pac. Ry. Co., 104 Mo. 514, 16 S. W. 487, 24 Am. St. Rep. 348; McGinnis v. Mo. Car & Foundry Co., 174 Mo. 225, 73 S. W. 586, 97 Am. St. Rep. 553; Schueren v. St. L., etc., Ry. Co. (Mo. Sup.) 192 S. W. 965. These premises must, I think, be regarded as settled. Therefore, if this cause of action had arisen in Missouri, and had remained in the circuit court of the city of St. Louis, plaintiff could not have maintained it, and a demurrer, if there urged in such a case, must have been sustained, under a ground of demurrer provided by the statutes of Missouri.

But it is urged here that, even if plaintiff could not have maintained this action in the state court where he commenced it, he may upon removal maintain it here nevertheless. No cases are cited, either for or against this proposition, by either side. Remarkable to say, I have not, after considerable research, found a case squarely in point. Upon principle, it is difficult to see how jurisdiction could exist here, if there were none in the state court, especially in a case wherein the jurisdiction is concurrent, and this court gets jurisdiction on account of diversity of citizenship alone. By analogy, the matter of removal has been likened to a change of venue. Davis v. St. Louis Ry. Co. (C. C.) 25 F. 786. If such analogy exists, and Judge Brewer (afterwards Mr. Justice Brewer) said in the case last cited that it does, this settles the question in favor of the view I express.

Both Illinois and Missouri have substantially enacted into their local laws what is called "Lord Campbell's Act." The statute of Illinois confers the right of action on the personal representative of the deceased for the benefit of his "widow and next of kin." The statute of Missouri now confers the right of action on four different classes of persons. By the first of these classes, the right of action is given to the surviving husband or wife, if he or she shall sue within six months. Under the second of these classes, the right of action goes to the children, natural or adopted, if there be no surviving spouse, or if the surviving spouse shall fail to sue in six months after the death of deceased. By the third of these classes, if there be no surviving spouse, and no children or their descendants, the father and mother (if deceased be a minor) take the right to sue. By the fourth subdivision (enacted as an amendment, in 1905, to what is now section 4217, R. S. Mo. 1919), if all the persons mentioned in all three of the preceding classes are nonexistent, or fall without the statute, then the action in Missouri may be brought by the personal representative of deceased, for the benefit of all persons entitled thereto by other statutes of Missouri, providing for the distribution of an estate according to the laws of descent. In other words, it may be said that the sum recovered goes under the fourth subdivision to the next of kin, when recovered by the personal representative under the Missouri law.

It is fairly clear that, if the casualty which caused the death of plaintiff's decedent had happened in Missouri, he could not have sued in his capacity of personal representative, for the reason that such decedent left surviving her a living husband, to whom the right to sue was first given, and because the Missouri statute makes no provision for vesting the right to sue in an administrator, when other persons, to whom prior rights are given, having been in esse when the death occurred, shall subsequently die before bringing suit. Plaintiff cannot maintain his action upon any theory referable to any statute of Missouri. If he could have maintained it in a state court, where he began it, he must have done so under the law of Illinois.

It is true that, pursuant to the mandate of the federal Constitution, each state of the Union must open its courts to citizens of a foreign state, but only upon the same terms and conditions as such state opens such courts to its own citizens. But this rule has no application here, because plaintiff, as was his decedent in her lifetime, is a citizen of Missouri. But even the rule of comity enjoined by the federal Constitution is not a thoroughgoing one. As intimated above, the requirement goes only so far as to prohibit any distinctions as between local citizens and the citizens of foreign states of the Union. The state of the forum has an option in the matter. This option depends in the last analysis on whether the action sought to be brought in a state court is contrary to a statute, or to the public policy of the state of the forum. If it is, then, since a citizen may not maintain it, the citizen of a foreign state cannot. The constitutional mandate goes so far, and no farther. It simply forbids, as said, arbitrary distinctions to be made as against citizens of another state.

Moreover it was said in the case of Thompson v. Railroad, 6 Wall. 134, 138 (18 L. Ed. 765), that "the railroad companies mistook the course of proceeding in courts of the United States in actions at law, in suits brought up from state courts. In this case, as the action was a purely legal one, if they could have maintained it in their names in the state court, they had an equal right to maintain it in their names * * * in the federal court. * * * The law of Ohio directs that all suits be brought in the name of the real party in interest. This constitutes a title to sue, when the suit is brought in the state court, in conformity with it; and in all cases transferred from the state to the federal court, under the twelfth section of the Judiciary Act 1 Stat. 79, this title will be recognized and preserved." Again, in the case of West v. Aurora City, 6 Wall. 139, 142 (18 L. Ed. 819) it was said: "A suit removable from a state court must be a suit regularly commenced by a citizen of the state in which the suit is brought, by process served upon a defendant who is a citizen of another state, and who, if he does not elect to remove, is bound to submit to the jurisdiction of the state court." (Italics are mine.)

I conclude then that in a case like the one at bar, if plaintiff could not have maintained this action in a state court, he cannot maintain it upon removal here; for section 914, R. S. (Comp. St. § 1537), provides: "The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the Circuit and District Courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such Circuit or District Courts are held, any rule of court to the contrary notwithstanding."

The necessity of compliance with local laws as to "pleadings and forms and modes of proceeding," enjoined by the above section, has been uniformly, so far as I have been able to find, applied to parties who are entitled to sue in civil cases at law. 1 Rose's Code of Federal Procedure, § 902; 2 Foster, Fed. Procedure, 453; 25 C. J. 808; New York Evening Post Co. v....