Robinson v. The Chicago

• Decision Date: 05 July 1913
• Docket Number: 18,368
• Citation: 133 P. 537,90 Kan. 426
• Court: Kansas Supreme Court
• Parties: HATTIE ROBINSON, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

133 P. 537

90 Kan. 426

HATTIE ROBINSON, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 18,368

Supreme Court of Kansas

July 5, 1913

Decided July, 1913.

Appeal from Phillips district court.

Order overruling demurrer sustained.

SYLLABUS

SYLLABUS BY THE COURT.

1.NEGLIGENCE--Death of Husband--Nonresident at Time of Death--Action by Widow--Failure to Plead Foreign Statute.In an action brought in time by a widow to recover damages for the negligent killing of her husband in the operation of a railway train the omission to allege in the petition that the deceased was a nonresident of Kansas but was a resident of another state and that by the laws of such other state the widow was the only person authorized to bring the action does not render such action a nullity.

2.Amended Petition--Statute of Limitations.Where in such case the plaintiff, more than two years after the death of her husband, on leave of court files an amended petition in the action and recites therein substantially the same facts as in her original petition and adds the omitted allegations with reference to the nonresidence of the deceased, the authority to bring the action under the laws of the other state, etc her action is not barred by the two years statute of limitations relating to actions of this class.

Paul E. Walker, and Luther Burns, both of Topeka, for the appellant.

W. A Barron, N. B. McCormick, T. F. Countryman, E. E. Sprague, all of Phillipsburg, I. M. Mahin, and F. W. Mahin, both of Smith Center, for the appellee.

OPINION

SMITH, J.:

This action was brought by appellee to recover damages against appellant for the killing of her husband at Phillipsburg, Kan., by the negligent operation of a train upon which the deceased was riding and in which he was shipping an emigrant car loaded with "emigrant freight," consisting of live stock, household goods, farm implements and such other goods as are usually shipped and transported in emigrant cars.It was alleged that the deceased loaded the car at Brush, Colo., to be transported to Apache, Okla., and his contract for the transportation thereof included his own transportation.In the original petition the plaintiff did not specifically allege that the deceased was a nonresident of Kansas.She alleged that her residence at the time of filing the petition and at all times referred to therein was at Brush, Colo., and that the deceased was her husband.

The appellant answered this petition but raised no question of appellee's right to...