St. Louis, I. M. & S. R. Co. v. McNamare

• Decision Date: 28 June 1909
• Citation: 122 S.W. 102
• Parties: ST. LOUIS, I. M. & S. R. CO. v. McNAMARE.
• Court: Arkansas Supreme Court

122 S.W. 102

ST. LOUIS, I. M. & S. R. CO. v. McNAMARE.

Supreme Court of Arkansas.

June 28, 1909.

Appeal from Circuit Court, Marion County; Brice B. Hudgins, Judge.

Action by Ruth E. McNamare against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

This is an action by Ruth E. McNamare, widow of F. McNamare, against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for alleged negligence in killing her husband while in the employment of said railway company. The material facts upon which the suit is based are as follows: On the 18th day of February, 1908, plaintiff's husband was in the employment of the defendant as a brakeman on one of its freight trains, running from Cotter, Ark., to Crane, Mo. On said date one of the defendant's freight trains upon which her said husband was a brakeman was running north on defendant's railroad at or near Melva, Mo., and the conductor ordered her husband, who was in the rear of said train, to walk over the cars and notify the engineer to head-in on a switch in the yards at Melva for the purpose of allowing a passenger train to pass. In obedience to the order, McNamare went forward and notified the engineer. The engineer, instead of heading into the switch, went to the other end of it for the purpose of backing into it. It was the duty of McNamare to assist in operating the switch. For that purpose, as the engine approached the switch stand, he jumped off of it. His foot was caught in an unblocked frog of guard rail, and was held so firmly that he could not unloose it so as to get out of the way of the train. The train ran over him, severing his legs from his body, which resulted in his death. In getting off of the engine he jumped on the side next to the switch, instead of on the opposite side, as he was required to do by the rules of the company. There was a jury trial and verdict for the plaintiff in the sum of $7,500. From the judgment entered on the verdict the defendant has appealed.

E. B. Kinsworthy, S. D. Campbell, and T. T. Dickinson, for appellant. Jones & Seawell and Hamlin & Seawell, for appellee.

HART, J. (after stating the facts as above).

1. Counsel for appellant assign as error the action of the court in refusing to grant it a change of venue. In its petition for a change of venue appellant states: "That it verily believes that it cannot obtain a fair and impartial trial in this, Marion, county, on account of the undue prejudice against the petitioner in said county. It further says the plaintiff is not a resident of Marion county, Ark., but is a resident of the state of Missouri; that her cause of action, if any she has, and the occurrence of which she complains, did not take place in Marion county, Ark., but occurred in the state of Missouri, and plaintiff was not compelled to institute her suit in Marion county in order to get service on the defendant" — and ends with a prayer to grant it an order changing the venue of this case to some other county in the state of Arkansas, against which there was no valid objection, and for all other proper relief.

The facts are that appellee came to Marion county after the suit was brought, a few weeks before the date of the trial, and resided there at the time of the trial. At the time her husband received the injury complained of, they resided at the town of Cotter, in Baxter county, Ark., through which county appellant's line of railroad also extended. The injury complained of occurred in the state of Missouri. The action was not commenced in the county of the plaintiff's residence, nor in the county where the occurrence she complains of took place, and it was not necessary to bring the suit in Marion county in order to get service on the appellant. Hence, upon presentation of its petition duly verified, appellant was entitled as a matter of right to a change of venue.

We will quote the two sections of our statutes relative to the question: Section 7996 provides: "Any party to a civil action trial by jury may obtain an order for change of venue therein by a motion upon a petition stating that he verily believes that he cannot obtain a fair and impartial trial in said action in the county in which the same is pending on account of the undue influence of his adversary, or of the undue prejudice against the petitioner, or his cause of action, or defense, in such county. The petition shall be signed by the party and verified as pleadings are required to be verified, and shall be supported by affidavits of at least two credible persons to the effect that affiants believe that the statements of the petitioner are true." Section 7998: "Upon presenting the petition, which may be resisted, and notice to such judge, he may make an order for the change of venue in such action if, in his judgment, it be necessary to a fair and impartial trial, to a county to which there is no valid objection, which he concludes is most convenient to the parties and their witnesses; provided, that, in case where the plaintiff shall have instituted suit in a county other than that of his residence, or of the county where the occurrence of which he complains took place, unless compelled to do so in order to get service on the defendant, the defendant shall have the right to a change of venue upon presentation of his petition duly verified."

The language, "upon presenting the petition, which may be resisted," plainly contemplates the petition duly verified and the supporting affidavits. This is so for the reason that it provides for a resistance, which could not be done and which would not be necessary to be done unless a petition for change of venue duly verified and with supporting affidavits as required by the statute had been filed. In short there would be nothing to resist unless the requirements of 7996 had been complied with. The proviso contained in the latter part of section 7998 is a limitation upon the preceding part of the section. Where the conditions contained in the proviso exist, they defeat the operation of the first part of the section. In other words, the proviso conditionally limits the operation of the statute relative to a change of venue. It provides that, when the conditions exist, the change of venue shall be granted as a matter of right upon presentation of the petition duly verified. If the Legislature had intended that the supporting affidavits should accompany the petition as a prerequisite to the granting of a change of venue, it would have used the language "upon presentation of his petition duly verified together with the supporting affidavits"; but the expression of the one excludes the use of the other. In the case of St. Louis Southwestern Railway Co. v. Furlow, 81 Ark., at page 499, 99 S. W. 690, the court said: "The statute plainly means that if the plaintiff commences an action in a county other than that of his residence, or other than that of the county in which this occurrence of which he complains took place, unless he is compelled to do so in order to get service on the defendant, the latter shall have the right to a change of venue upon presentation of his petition in proper form, duly verified, containing allegations of the statutory grounds of prejudice or undue influence and supported by the affidavits of two credible witnesses." The use of the words, "and supported by the affidavits of two credible witnesses," used by the court, was not necessary to a proper determination of the issue under consideration, and the views we have expressed in the present case are in harmony with the rest of the opinion.

2. Appellee alleges in her complaint that she is entitled to maintain this action under section 2864 of the Revised Statutes of Missouri of 1899 (Ann. St. 1906, p. 1637). Counsel for appellant contend that section 2864 is penal in its character, and that the courts of one jurisdiction will not enforce the penal statutes of another. The allegations of the complaint do not state a cause of action under section 2864, but do state a cause of action under section 2865 of the Revised Statutes of Missouri. The right of action given in section 2864 is for a death caused by the negligence of the servant operating the defendant's instrument of transportation, whether it be a locomotive, car, train of cars, steamboat, its machinery, stagecoach, or other public conveyance, while the right of action given in the two sections next following is for a death caused by the negligence of the defendant, which may mean his own negligence, as, for instance, in furnishing an unsafe vehicle, or it may mean his negligence through his servant in some particular other than the particular specified in section 2864, for which, if the person injured had not died, he would have had a cause of action. Casey v. Transit Co., 205 Mo. 721, 103 S. W. 1146; Crohn v. Kansas City Home Telephone Co., 131 Mo. App. 313, 109 S. W. 1068. The complaint in this case alleges that the death of McNamare was caused by the negligence of appellant in failing to block its frogs and guard rails as required by the act approved February 28, 1907. See Laws Mo. 1907, p. 181. Hence it states a cause of action under section 2865, and not under 2864, of the Missouri Revised Statutes. Section 2865 does not create a new cause of action, but simply transmits one that theretofore existed, and would have ceased to exist upon the death of the injured party but for its provisions. Strottman v. St. Louis, Iron M. & Sou. R. Co., 211 Mo. 227, 109 S. W. 769. Section 2865, Rev. St. Mo. 1899, is as follows: "Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which would...