Rositzky v. Rositzky

• Decision Date: 11 February 1932
• Docket Number: 29985
• Parties: Rose Rositzky v. Ike Rositzky, Appellant
• Court: Missouri Supreme Court

46 S.W.2d 591

329 Mo. 662

Rose Rositzky v. Ike Rositzky, Appellant

No. 29985

Supreme Court of Missouri

February 11, 1932

Appeal from Buchanan Circuit Court; Hon. L. A. Vories Judge.

Reversed and remanded.

Mayer Conkling & Sprague for appellant.

(1) The petition does not state a cause of action. The petition is fatally defective in that it alleges that the plaintiff's husband was killed in the State of Iowa, but fails to allege the existence of any statute of the State of Iowa conferring upon the plaintiff a right of action for the alleged wrongful death of her husband. Gibson v. Railroad, 225 Mo 473; Debevoise v. Railroad, 98 N.Y. 377; English v. Railroad, 146 N.Y.S. 963, 965; Louisville & N. Railroad Co. v. Williams, 113 Ala. 402, 21 So. 938; Hall v. Railroad Co., 241 Pa. 399, 88 A. 659; Ranklin v. Central Railroad of New Jersey, 77 N. J. L. 175, 71 A. 55; Hyde v. Railroad Co., 61 Iowa 441, 16 N.W. 351; Jackson v. Railroad Co., 140 Ind. 241, 39 N.E. 663; Selma, etc., Railroad Co. v. Lacy, 43 Ga. 461; De Ham v. Railroad Co., 22 S.W. 249; Ryan v. Salmon Co., 153 Cal. 438, 95 P. 862; 8 R. C. L. 816; 17 C. J. 1283. (a) At common law no right of action accrued to the widow, or anyone else, in cases of wrongful death. Wells v. Davis, 303 Mo. 388. (b) Such a right of action is maintainable only under authority of a state statute, which has no extraterritorial effect. McGinnis v. Mo. Car & Foundry Co., 174 Mo. 225; Vawter v. Railroad, 84 Mo. 683. (c) The existence of such a right of action therefore depends upon and is necessarily determined by and governed by the statutory law of the state in which the fatal injury was inflicted and where the cause of action arose. Woodard v. Bush, 282 Mo. 163; 8 R. C. L. 736. (d) The wrongful death statutes of Missouri have no extra-territorial operation. Schueren v. Railroad, 192 S.W. (Mo. Sup.) 966; Oates v. Railroad, 104 Mo. 514. The alleged fact that the defendant killed the plaintiff's husband in Iowa, was no cause of action for which a suit could be maintained under the wrongful death statutes of Missouri. Selma, etc., Railroad Co. v. Lacy, 49 Ga. 107. Consequently, if the plaintiff can recover at all, she must do so by force of the statutes of the State of Iowa, and not because of the statutes of Missouri. McGinnis v. Mo. Car & Foundry Co., 174 Mo. 233; Newlin v. Railroad, 222 Mo. 391. (e) Missouri courts cannot take judicial notice of the statutes of Iowa. Mathieson v. Railroad, 219 Mo. 547. Where a foreign statute confers the right to sue, and is the very foundation of a cause of action, it must be pleaded. Rashall v. Railroad, 249 Mo. 516. This general rule applies to actions for wrongful death which accrue in a foreign state, so that the plaintiff was required to plead the existence of a statute of Iowa authorizing the maintenance of this action. Gibson v. Railroad, 225 Mo. 473. It was the duty of the plaintiff to plead all of the facts constitutive of her cause of action, which includes the fact that she had a cause of action under the laws of the state where the fatal injury occurred. Shelton v. Street Railway, 167 Mo.App. 404. That the foreign statute in such cases must be pleaded as any other substantive fact is well established. Wentz v. Railroad, 259 Mo. 465; Fidelity Loan Securities Co. v. Moore, 280 Mo. 325; Musser v. Musser, 281 Mo. 660; Smith v. Trimble-Compton Produce Co., 222 Mo.App. 781. (2) As the common law was put in force in Iowa, long prior to her admission into the Union as a state, by the Territorial Laws of Missouri and by Acts of Congress, of which Missouri courts must take judicial notice, therefore, the common law must be presumed to be yet in force there upon the question involved, until the contrary is shown. Davis v. McColl, 179 Mo.App. 198. Consequently, since there is no allegation in the petition that the common law of Iowa had been changed, or that any statute was in force there which authorized the widow to maintain an action for damages for the death of her husband, the courts of Missouri, in the absence of such allegations, will presume that the common law applicable to the alleged cause of action is in force in Iowa. Selma, etc., Railroad Co. v. Lacy, 43 Ga. 461; Jackson v. Railroad Co., 39 N. E. (Ind.) 663; Murray's Adm'x v. Railroad Co., 110 S.W. 334; 5 R. C. L. 1039. (3) The courts of Missouri cannot presume that the statute law of Missouri is the same as the statute law of Iowa. Edwards Brokerage Co. v. Stevenson, 160 Mo. 516; Morrisey v. Ferry Co., 47 Mo. 521. It is only in respect of those states which were never subject to the common law that our courts, in the absence of allegation or proof of the lex loci delicti commissi, will apply the statute law of the forum. Davis v. McColl, 179 Mo.App. 202; Hazelett v. Woodruff, 150 Mo. 540. Consequently, since Iowa is a common law state, and since the Missouri courts can neither presume that the statute law of Iowa is the same as in Missouri, nor apply to this case the Missouri statutes governing actions for wrongful death, and since the Missouri courts must presume, in the absence of allegation to the contrary, that the common law has continued in force in Iowa to the present time, the question of the plaintiff's right to sue for the killing of her husband in Iowa must be resovled in the light of the common law. Davis v. McColl, 179 Mo.App. 198; Industrial Acceptance Corporation v. Webb, 287 S.W. 660. (4) Since no action to recover damages for causing the death of a person exists at common law, the petition wholly fails to state facts sufficient to constitute a cause of action. It is elementary that a petition good in law must not only state a complete cause of action against the defendant, but it must also show a right of action in the plaintiff. Gruender v. Frank, 267 Mo. 720. It is also well established that when the laws of a sister state constitute a part of the very cause of action, the failure to plead such law of the sister state will render the petition fatally defective. Fidelity Loan Securities Co. v. Moore, 280 Mo. 315. So that, where a statute of a sister state confers the right to sue, a petition which does not plead the provisions of such foreign statute giving the plaintiff a right of action wholly fails to state a cause of action, and this defect not only renders the petition demurrable, Gibson v. Railroad, 225 Mo. 473, but such defect is not cured by verdict and judgment. Smith v. Produce Co., 222 Mo.App. 777. A petition which states no cause of action, (a) presents a defect which is jurisdictional and self-asserting. La Rue v. La Rue, 317 Mo. 214, and (b) the fatality of such defect can be raised in any court or at any stage of the cause, Chandler v. Railroad, 251 Mo. 599, and (c) such defect is not cured by verdict though not taken advantage of by demurrer. Colvin v. Railroad, 200 S.W. (Mo. App.) 718; Mathieson v. Railroad, 219 Mo. 542; Weil v. Greene County, 69 Mo. 286.

Manard & Schwimmer for respondent; Joe E. Burris and Carroll W. Berry of counsel.

(1) Appellant allowed respondent's petition to pass unchallenged up to time of trial and joined issue with respondent by filing answer containing a general denial only. Therefore the defect, if any, that respondent failed to plead sufficient facts to allow her to maintain the action, is cured by appellant's failure to properly demur to respondent's petition, and is cured by the answer filed and verdict. 17 C. J. 1296; Lee v. Ry. Co., 92 S.W. 617; Shelton v. St. Ry. Co., 151 S.W. 496; Canada v. Daniel, 157 S.W. 1034; Hale on Torts, sec. 89, p. 186; Madden v. Ry. Co., 151 S.W. 492. (2) Respondent's petition states sufficient facts to allow her to maintain the cause of action as pleaded. Biggie v. Railroad Co., 140 S.W. 602; Lee v. Ry. Co., 92 S.W. 617; Noell v. Ry. Co., 21 S.W.2d 942; Stricker v. Life Ins. Co., 237 S.W. 895; Baker v. Railroad Co., 172 S.W. 1186; Dunbar v. Bank, 295 S.W. 837; Stakebake v. Railroad Co., 185 S.W. 1167; Wells v. Davis, 261 S.W. 60; Bennett v. Lohman, 238 S.W. 797; Woolridge v. Bryan, 270 S.W. 660; Rees v. Life Ins. Co., 251 S.W. 306; 1 Jones, Commentaries on Evidence, sec. 323, p. 541. (3) In the absence of any pleading or proof as to the law of the State of Iowa this court should not presume that the common law is in effect therein. Dunbar v. Bank, 295 S.W. 837; Shelton v. St. Ry. Co., 151 S.W. 496; Madden v. Missouri Pacific, 151 S.W. 492; Laws of Territory of Louisiana and Missouri, vol. 1, p. 436; Violette, History of Missouri, pp. 77, 78, 79; Cyclopedia of Kansas History, p. 191; Bassett's History of United States, p. 299. (4) From the pleading and proof any presumption that the common law is existent in the State of Iowa has been dispelled. Noell v. Ry. Co., 21 S.W.2d 942; Madden v. Ry. Co., 192 S.W. 457. (5) The common law rule that no civil right of action can be maintained for wrongful death, does not prevail any longer in this State. Laws of Territory of Louisiana and Missouri, vol. 1, p. 436; 1 R. S. Chap. 4, sec. 645, pp. 333-334; State v. Rader, 171 S.W. 48; Hale on Torts, sec. 89, pp. 185-186; Coleman v. Lucksinger, 123 S.W. 411.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

By this suit plaintiff, as widow of Philip Rositzky deceased, seeks to recover damages on account of her husband's death, caused, as she claims, by reason of defendant's negligence. The petition alleges that plaintiff's said husband was at the time of his death riding as a guest of his brother, the defendant, in his brother's automobile, owned and operated by him, and that such automobile was so recklessly and negligently driven and operated by defendant that same turned over into the ditch at the roadside and was wrecked, resulting in plaintiff's husband being instantly killed. It is further alleged that...