Slater v. Kansas City Terminal Ry. Co.

• Decision Date: 13 September 1954
• Docket Number: No. 1,No. 43954,43954,1
• Citation: 271 S.W.2d 581
• Parties: Cora A. SLATER, Plaintiff-Appellant,* v. KANSAS CITY TERMINAL RAILWAY COMPANY, a Corporation, and Missouri-Kansas-Texas Railroad Company, a Corporation, Defendants-Respondents
• Court: Missouri Supreme Court

Page 581

271 S.W.2d 581

Cora A. SLATER, Plaintiff-Appellant,* v. KANSAS CITY TERMINAL RAILWAY COMPANY, a Corporation, and Missouri-Kansas-Texas Railroad Company, a Corporation, Defendants-Respondents.

No. 43954.

Supreme Court of Missouri, Division No. 1.

Sept. 13, 1954.

Motion for Rehearing or to Transfer to Court en Banc Denied

Oct. 11, 1954.

Donald L. Randolph, Kansas City, for appellant.

Horace F. Blackwell, Jr., James F. Walsh, Kansas City, for respondent, Kansas City Terminal Ry. Co.

Carl S. Hoffman, St. Louis, Frank J. Rogers, Kansas City, for respondent, Missouri-Kansas-Texas R. Co.

VAN OSDOL, Commissioner.

This is an appeal by plaintiff from a judgment of dismissal of plaintiff's petition in which petition, filed October 20, 1952, plaintiff stated a claim as the widow for the wrongful death of her husband and sought the recovery of $15,000 damages. The trial court sustained defendants' motion to dismiss the amended petition on the stated grounds that the action was not instituted within one year after the claim accrued, and that the amended petition failed to state a claim upon which relief could be granted. Plaintiff had instituted the action by filing an original petition in which she asserted a claim as the administratrix of her deceased husband's estate.

Herein upon appeal the question is--did the amended petition substituting the widow as plaintiff relate back to the time of the filing of the original petition so as to avoid the incidence of limitation of action, Section 537.100 RSMo 1949, V.A.M.S.

Plaintiff, as stated, brought her action by filing the original petition as 'Administratrix of Elmer F. Slater, Deceased.' The petition was filed January 10, 1950, within six months after the death of decedent, plaintiff's husband, which occurred November 4, 1949. In the original petition, plaintiff alleged that she was the personal representative of her deceased husband within the meaning of the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq.; 'that at the time of his death, the said Elmer F. Slater left surviving him a widow, plaintiff and administratrix herein, and no minor children; the said Elmer F. Slater left surviving him no descendants of a deceased child; that in and during his lifetime, the said Elmer F. Slater was the sole support and maintenance of plaintiff * * *.' The original petition continued by stating that defendants were operating their facilities in interstate commerce; that the death of the husband directly resulted from the negligence of defendant Missouri-Kansas-Texas Railroad Company, a common carrier by rail in interstate commerce and a lessee of the tracks of defendant Kansas City Terminal Railway Company; that the lessor (defendant Kansas City Terminal Railway Company) became and remained liable under Missouri Statute, Section 388.310 RSMo 1949, V.A.M.S., for the acts of its lessee. It was stated that Elmer F. Slater was an employee of St. Louis-San Francisco Railway Company, a common carrier by railroad in interstate commerce; that Elmer F. Slater was engaged in an interstate switching movement for his employer in the yards of defendant Kansas City Terminal Railway Company when the defendant Missouri-Kansas-Texas Railroad Company negligently ran its engine and train so as to strike Elmer F. Slater; and that as a direct result of such negligence Elmer F. Slater was fatally injured. Primary and humanitarian rule negligence was specifically alleged, and the prayer for relief was for $15,000 damages.

When she filed her original petition, plaintiff, as administratrix, could not maintain an action upon the claim or cause of action under the Missouri wrongful death statutes. Nor could she state a claim under the Federal Employers' Liability Act against these defendants-respondents, railroads engaged in interstate carriage, Graham v. Thompson, 357 Mo. 1133, 212 S.W.2d 770. Her husband was not their employee. As a widow, plaintiff, when she filed her original petition, January 10, 1950, had vested in her and she could have stated a claim for wrongful death of her husband under our wrongful death statute. As the widow, she could have instituted her action within six months (or if as alleged there were no minor children, then within a year) after the husband's death. In passing, we remind ourselves that the Missouri wrongful death statutes provide for but one cause of action which accrues and passes in accordance with the statute, Sections 537.070, 537.090 RSMo 1949, V.A.M.S. Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920.

It is apparent that plaintiff misconceived the nature of her claim in seeking relief thereon under the Federal Employers' Liability Act. But if all of the allegations in the original petition pertaining to the interstate character of defendants' operations as common carriers by railroad and references to the Federal Employers' Liability Act were stricken, Sullivan v. St. Louis-San Francisco R. Co., 321 Mo. 697, 12 S.W.2d 735, or deleted or ignored as surplusage, yet plaintiff in her original petition, stated that she was the widow of decedent whose death directly resulted from defendants' negligence as specifically alleged--and she stated facts sufficient in substance to enable her as a widow to maintain an action on the claim for wrongful death of her husband at the time she filed her original petition as administratrix, January 10, 1950.

Even though plaintiff misconceived the nature of her claim when she instituted her action by filing her original petition as administratrix, nevertheless she was attempting to state a claim for the benefit of herself, individually, as a widow, although under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 59. And we think we see that in both petitions (the original, filed by plaintiff as administratrix, and the amended, filed by plaintiff as widow) plaintiff in intendment was stating a claim in her own personal behalf as a widow, the real party in interest. In the amended petition, filed as stated October 20, 1952, the negligence of defendants was stated by allegations identical with the allegations of negligence in the original petition, and in the same alleged circumstances. In the amended petition plaintiff as widow was substituted for plaintiff as administratrix. The substitution by amendment was a mere change in the capacity in which plaintiff sued. Before and after the amendment plaintiff, personally, was the person really interested. In this situation, we say the amendment, the change in the capacity in which plaintiff sued, was but a formal one, and in the interest of justice it should be said that the amendment of the petition was not the commencement of a new action and was not barred by limitation. It should be held there was a continuation of the action on the same claim as encompassed within the factual averments of the original petition, and the amendment should be held to have related back to the time of the filing of the...