Swisher v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 08 June 1907
• Parties: SWISHER v. ATCHISON, T. & S. F. RY. CO.
• Court: Kansas Supreme Court

90 P. 812

76 Kan. 97

SWISHER v. ATCHISON, T. & S. F. RY. CO.

Supreme Court of Kansas

June 8, 1907

Rehearing Denied July 5, 1907.

Syllabus by the Court.

Where a cause of action which did not exist at common law is created by the statute of another state or territory, such cause of action, when presented to the courts of this state for enforcement, will be held to consist, not merely of the right given, but also of all the conditions and limitations attached thereto by the statute of the place where it was created.

The law of the territory of New Mexico created a cause of action in favor of certain relatives of persons whose death might be caused by the negligence or wrongful act of another. By the same statute it was made the duty of the person seeking to enforce such cause of action to serve upon the defendant a notice, containing certain specified facts, within 90 days after the injury. The clause of the statute concerning the necessity of such notice reads:

"It being hereby expressly provided that such right of action is given only on the understanding that the foregoing conditions precedent are made a part of the law under which a right to recover can exist for such injuries, except as herein otherwise provided."

Held, that such notice is an essential part of the right given, and must be served as provided, before an action to enforce the cause of action can be maintained in the courts of this state.

[Ed Note.-For cases in point, see Cent. Dig. vol. 15, Death, § 13.]

Error from District Court, Dickinson County; Oscar L. Moore, Judge.

Action by Isaiah Swisher, administrator of John W. Swisher, against the Atchison, Topeka & Santa Fé Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

On May 2, 1905, John W. Swisher was killed in New Mexico by the explosion of a locomotive engine, while he was engaged as fireman thereon for the Atchison, Topeka & Santa Fé Railway Company. The deceased was 24 years of age and unmarried. His parents, who resided in Abilene, Dickinson county, Kan., were his only surviving heirs at law and next of kin. Isaiah Swisher, father of the deceased, was duly appointed administrator of the estate of John W. Swisher, in Dickinson county, Kan., and commenced this action in the district court of that county September 12, 1905. The pleadings were amended several times, and on December 20 1905, a second amended petition was filed. This pleading contained the usual averments of a petition in such a case, except that, as a foundation for the right of action, it alleged the existence of a statute of New Mexico, creating a right of action in favor of the next of kin for damages sustained on account of the death of a relative caused by the negligence or wrongful act of another. It will be sufficient, without reproducing the law, to say that it is substantially like other statutes of its kind, differing in procedure and details. It was first enacted in 1891 and 1893 and re-enacted in the compiled laws of 1897. To this petition the defendant filed an answer, in which it alleged that the law of New Mexico, pleaded by the plaintiff, was amended in 1903 in some important particulars (chapter 33, p. 51). The amendatory act was averred in full. Section 1 of said law reads: “Section 1. Hereafter there shall be no civil liability under either the common law or any statute of this territory on the part of any person or corporation for personal injuries inflicted or death caused by such person or corporation in this territory, unless the person claiming damages therefor shall, within ninety days after such injury shall have been inflicted, make and serve upon the corporation or person against whom the same is claimed, and at least thirty days before the commencing suit to recover judgment therefor, an affidavit which shall be made before some officer within this territory who is authorized to administer oaths, in which the affiant shall state his name and address, the name of the person receiving such injuries, if such person be other than the affiant, the character and extent of such injuries in so far as the same may be known to affiant, the way or manner in which such injuries were caused in so far as the affiant has any knowledge thereof, and the names and addresses of all witnesses to the happening of the facts or any part thereof causing such injuries as may at such time be known to affiant, and unless the person so claiming said damages shall also commence an action to recover the same within one year after such injuries occur, in the district court of this territory in and for the county in which such injuries occur or in and for the county of this territory where the claimant or person against whom such claim is asserted resides, or, in event of such claim asserted against a corporation in the county in this territory where such corporation has its principal place of business, and said suit after having been commenced shall not be dismissed by plaintiff unless by the written consent of the defendant filed in the case, or for good cause shown to the court, it being hereby expressly provided that such right of action is given only on the understanding that the foregoing conditions...