State ex rel. Bossung v. Dist. Court

• Decision Date: 02 August 1918
• Docket Number: No. 20966.,20966.
• Citation: 168 N.W. 589,140 Minn. 494
• Parties: STATE ex rel. BOSSUNG v. DISTRICT COURT, HENNEPIN COUNTY, et al.
• Court: Minnesota Supreme Court

140 Minn. 494

168 N.W. 589

STATE ex rel. BOSSUNG

v.DISTRICT COURT, HENNEPIN COUNTY, et al.

No. 20966.

Supreme Court of Minnesota.

Aug. 2, 1918.

Mandamus to District Court, Hennepin County; Joseph W. Molyneaux, Judge.

Original proceeding in mandamus by the State, on the relation of Ella S. Bossung, as administratrix, against the District Court of Hennepin County and others. Peremptory writ issued.George C. Stiles and D. C. Edwards, both of Minneapolis, for relator.

A. G. Ellick, of Omaha, Neb., and Hoke, Faegre & Bauers, of Minneapolis, for respondents.

PER CURIAM.

The relator is administratrix of her husband, who was killed in a collision between an automobile in which he was riding and a train of the Union Pacific Railroad Company at a public crossing in Lexington, Neb., on March 31, 1917. On August 2, 1917, she commenced an action in Hennepin county, Minn., to recover damages for his death upon a cause of action given by the Nebraska statute. Issues were joined and the action was set for trial on February 18, 1918. On February 2, 1918, the Union Pacific Company commenced an action in Nebraska to enjoin the relator from prosecuting the Minnesota action. On February 4th the relator was restrained by the Nebraska court from further prosecution until February 25, 1918, for which date the hearing on the application for a temporary injunction was set. On February 13, 1918, the district court of Hennepin issued an order to show cause why the Minnesota action, because of the Nebraska injunction, should not be stayed until the final determination of the issues in the Nebraska action and on February 16, 1918, an order granting such stay was entered. We are not advised of further proceedings in the Nebraska action.

The railway company is organized under the laws of Utah, and has a line in Nebraska, but none in Minnesota, though subject to jurisdiction here. It is assumed by counsel throughout that the plaintiff is a citizen of Nebraska, as was her husband, though it is perhaps nowhere distinctly so alleged or admitted. This is an original proceeding in this court by mandamus to compel the district court of Hennepin to proceed with the action. The only question is the propriety of the order granting a stay. In the return the respondents called attention to the order of the Director General of Railroads, known as General Order No. 18, dated April 9, 1918, made in view of the act of Congress of March 21, 1918, directing that suits be brought in the county or district where the plaintiff resides or where the cause of action arose. When the case was finally submitted, they withdrew all claim by virtue of this order, and the effect of it is not considered by us.

A cause of action given by the Nebraska statute for death occurring there will be enforced in Minnesota unless contrary to its public policy. In Herrick v. Minneapolis, etc., Co., 31 Minn. 11, 16 N. W. 413,47 Am. Rep. 771, a pioneer case, it was held that a cause of action occurring in Iowa making a railroad liable to its employés for injuries sustained through the negligence of coemployés would be enforced in this state, though at that time we had no railway fellow-servant act, and for an injury in this state there would not have been liability. So we have held that a cause of action given by the statute of another state for death by wrongful act, though differing from ours, if not contrary to its policy, will be enforced here. Powell v. Great N. Ry. Co., 102 Minn. 448, 113 N. W. 1017, and cases cited; 2 Minn. Notes, 452, and cases; Dunnell's Minn. Dig. & Supp. § 2603. This is the rule prevailing everywhere. It is the policy of the state, as evidenced by our decisions, to enforce such causes of action. It is the policy, as evidenced by our statute, which permits a foreign executor or administrator to maintain such an action. G. S. 1913, § 8178.

Such causes of action are enforced as a matter of comity. Neither the full faith and credit clause nor the privileges and immunities clause of the Constitution (Const. U. S. art. 4, §§ 1, 2) requires their enforcement when contrary to state policy. In State v. District Court, 126 Minn. 501, 148 N. W. 463, Ann. Cas. 1915D, 198, we held that the district court could not decline jurisdiction of a transitory action for tort arising in a foreign state, though the plaintiff was a citizen of that state and the defendant incorporated under the laws of another. The basis of the decision was section 2, the privileges and immunities clause, requiring the same treatment of a suitor, citizen of another state, as is accorded to a suitor, citizen of this state. Authority was thought to be found in Chambers v. Baltimore, etc., R. Co., 207 U. S. 142, 28 Sup. Ct. 34, 52 L. Ed. 143. A little later, in Davis v. Minneapolis, etc., R. Co., 134 Minn. 455, 159 N. W. 1084, we held that a citizen of another state, who had a cause of action under the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), and who had brought his action in Minnesota, would not be restrained from proceeding in this state until the determination of an action for injunction pending against him in the foreign state. This decision was substantially upon the ground that section 2 gave the plaintiff the right to proceed. And this is the effect of the cases. Eingartner v. Illinois, etc., Co., 94 Wis. 70, 68 N. W. 664,34 L. R. A. 503, 59 Am. St. Rep. 859;Cofrode v. Circuit Judge, 79 Mich. 332, 44 N. W. 623,7 L. R. A. 511;Steed v. Harvey, 18 Utah, 367, 54 Pac. 1011,72 Am. St. Rep. 789;Reynolds v. Day, 79 Wash. 499, 140 Pac. 681, L. R. A. 1916A, 432;Dougherty v. American, etc., Co., 255 Ill. 369, 99 N. E. 619, L. R. A. 1915F, 955, Ann. Cas. 1913D, 568. Neither of the Minnesota cases was a death case. Chambers v. Baltimore, etc., R. Co., 207 U. S. 142, 28 Sup. Ct. 34, 52 L. Ed. 143, was a death case and so was Dougherty v. American, etc., Co., 255 Ill. 369, 99 N. E. 619, L. R. A. 1915F, 955, Ann. Cas. 1913D, 568. Each of these involved a state statute assuming to fix the right to sue in the state. A death case is transitory in its nature. The policy of Nebraska in giving a cause of action for death harmonizes with ours. We do not refuse a Nebraska citizen access to our courts to recover for a death occurring in Nebraska, because h...