State v. Hoffman

• Decision Date: 03 July 1925
• Docket Number: No. 26042.,26042.
• Citation: 274 S.W. 362
• Parties: STATE ex rel. FORAKER v. HOFFMAN, Judge.
• Court: Missouri Supreme Court

274 S.W. 362

STATE ex rel. FORAKER v. HOFFMAN, Judge.

No. 26042.

Supreme Court of Missouri.

July 3, 1925.

Motion for Rehearing Overruled July 18, 1925.

Mandamus by State, on the relation of W. E. Foraker, administrator of the estate of James Starling Foraker, deceased, to compel Dimmitt Hoffman as Judge of the Circuit Court of Pettis County, to proceed with the trial of an action by the administrator against the Missouri Pacific Railway Company. Writ ordered. "

Paul Barnett, of Sedalia, for relator.

Montgomery & Rucker, of Sedalia, for respondent.

Statement.

WOODSON, J.

This is an original proceeding by mandamus brought in this court by the relator against the respondent as judge of the circuit court of Pettis county to compel him to proceed with the trial of the case of W. E. Foraker, administrator of the estate of James Starling Foraker, deceased, against the Missouri Pacific Railway Company, pending in the circuit court of Pettis county, Mo.

The facts out of which this case grew will best appear by a substantial statement of the petition filed by the relator asking for the writ of mandamus, and the respondent's return thereto.

On November 21, 1923, James Starling Foraker died testate, at Wichita, Kan., and left surviving him his father, J. B. Foraker, aged 79 years, and his mother, Emaline Foraker, aged 74 years, both of whom were dependent upon him for support, and both of whom he had been supporting up to the time of his death, and at the time of his death he was a single man without any children or other dependents than his said father and mother.

The said James Starling Foraker, at the time of his death, was a resident of Sedgwick county, in the state of Kansas, and on the 7th day of January, 1924, this plaintiff was appointed administrator with the will annexed of the said James Starling Foraker, deceased, by the probate court of Sedgwick county, Kan., and by reason of such appointment this plaintiff became the trustee for the benefit of the said J. B. Foraker and Emaline Foraker of the cause of action herein stated.

The defendant is a corporation duly incorporated under and by virtue of the laws of the state of Missouri, and it owns and operates a railroad running through the states of Missouri and Kansas, and running through Pettis county, Mo., and in and through the city of Wichita, Kan., and at the time of the death of the said James Starling Foraker he was an employé of defendant, and at the time of such death both he and the defendant were engaged in interstate commerce by railroad.

On November 21, 1923, James Starling Foraker was employed by the defendant as a switchman in defendant's switching yards at Wichita, in the state of Kansas, and on said day, while so employed, the switch engine being used by the crew of which James Starling Foraker was a member went in on a track of the defendant, commonly known as the auto dock track, and coupled onto three cars and then backed off for the purpose of pulling said cars off of said track; all of which work was being done by defendant through its agents, servants, and employés. The said James Starling Foraker, in the course of his employment, was riding on one of said cars, and his body was caught between one of said cars and an unloading dock belonging to and under the control of the defendant, known as the auto dock, in such manner that he was crushed and thrown and received injuries therefrom from which he died. The death of the said James Starling Foraker was the direct result of the negligence of the defendant, its agents, servants, and employés.

At the time of his death, James Starling Foraker was an able-bodied man, regularly making large wages, and his said father and mother were regularly receiving large sums from him for support, and would have Continued to receive the same had he not died, and they were his next of kin.

By reason of the above-stated facts, the said J. B. Foraker and Emaline Foraker have been damaged in the sum of $30,000, for which sum, together with the costs of this suit, this plaintiff prays judgment against the defendant.

Thereafter, on the first day of the November, 1924, term of said court, the defendant filed a motion in said cause, and in said court, which motion, omitting caption and signatures, is as follows:

"Comes now the defendant and appearing only for the purpose of this motion, moves the court to quash the writ of summons heretofore issued in this cause, and to dismiss this action, for the reason that section 1180, Revised Statutes of Missouri of 1919, under which this action was brought and said writ issued, is unconstitutional, for the reason that it allows jurisdiction in actions against carriers of interstate commerce which are based upon causes of action originating in other states where such suit might be lawfully maintained, and thereby imposes upon interstate commerce a serious and unreasonable burden, obnoxious to the commerce clause of the Constitution of the United States as contained in section 8 of article 1 of said Constitution of the United States, and which gives to Congress the power to regulate commerce with foreign nations and among the several states and with the Indian tribes.

"The defendant further states that it is an interstate carrier, engaged in interstate commerce in and between the states of Kansas and Missouri and many other states, and that the cause of action sued upon in this cause accrued to the plaintiff in the state of Kansas, that this defendant has a great many employés working for it in the state of Kansas, and that there are many claims against this defendant for personal injuries and for loss and damage to freight, and that the amounts demanded in such claims are large', and that the defendant oftentimes deems it imperative or advisable to leave the determination of its liability to the courts, but that litigation in states and jurisdictions remote from that in which the cause of action arose entails absence of the defendant's employés from their customary occupations, and thereby impairs the efficiency in operation of the defendant's business as an interstate carrier, and causes directly and indirectly heavy expense to this carrier.

"The defendant further states that said section 1180 permits a railroad company, although engaged in interstate commerce, to be sued in any county in the state of Missouri where such corporation shall have or usually keep an officer or agent for the transaction a its usual and customary business, wholly without regard to whether the cause of action of the plaintiff arose within or without the state of Missouri, or within a foreign state in which action might lawfully be brought without thereby imposing an undue and unreasonable burden upon interstate commerce.

"The defendant further states that the plaintiff was, at the time the cause of action sued upon arose, a resident of the state of Kansas, and that this administrator may lawfully maintain his action, if any, against this defendant in the state of Kansas, where the cause of action arose, without imposing any undue or unreasonable burden upon interstate commerce."

Thereafter, on the 12th day of November, 1924, said motion was taken up by the court for consideration and determination, and, to sustain the allegations of the motion to dismiss, the defendant offered in evidence an admission of the plaintiff and defendant, which admission was in writing and signed by the parties to this cause, and was filed in said court. Said admission, omitting caption and signature, is as follows:

"It is admitted by the parties to this cause that the Missouri Pacific Railroad Company is a railroad corporation organized in 1917 under the laws of the state of Missouri, and owning and operating a line of railroad running through Pettis county and other counties of the state of Missouri, and into and through the states of Kansas, Arkansas, and other states of the United States; that it is a common carrier by railroad, and is engaged in interstate commerce in the carriage of both freight and passengers; that the plaintiff is a citizen and resident of the state of Kansas and that James Starling Foraker, deceased, was, at the time of his death, a citizen and resident of the state of Kansas, and that the cause of action sued upon in this cause accrued in the state of Kansas; that defendant has at least eleven employés working for it in the state of Kansas who are competent and material witnesses in this cause; that there are many claims against the defendant for personal injuries and for loss and damages for freight, and that the amounts demanded in such claims are often large, and that the defendant often deems it imperative or advisable to leave the determination of its liability to the courts; that defendant cannot safely proceed to trial in this cause without the testimony of some of its employés in the state of Kansas, and that to procure their attendance at the trial in Pettis county, Mo., would cause absence from their work; that their work is connected with interstate commerce by railroad on the part of the defendant; and that to procure their attendance would involve expense upon the part of defendant. It is further admitted that the plaintiff may lawfully maintain his cause of action, if any, against the defendant in the state of Kansas, where the cause of action arose."

The above admission was the only evidence offered in support of the defendant's motion to dismiss; whereupon the court sustained said defendant's motion to dismiss, and held that the circuit court of Pettis county, Mo., had no jurisdiction to try said cause of action, and held that section 1180 of the Revised Statutes of Missouri of 1919 was, as to this defendant and this suit, unconstitutional under section 8, of article 1, of the Constitution of the United States, which gives to Congress the power to regulate interstate commerce, because to permit said suit to be maintained would be an undue burden upon...