The State ex rel. Foraker v. Hoffman

• Citation: 274 S.W. 362,309 Mo. 625
• Decision Date: 18 July 1925
• Docket Number: 26042
• Parties: THE STATE ex rel. W. E. FORAKER, Administrator of Estate of JAMES STARLING FORAKER, v. DIMMITT HOFFMAN, Judge of Circuit Court
• Court: United States State Supreme Court of Missouri

274 S.W. 362

309 Mo. 625

THE STATE ex rel. W. E. FORAKER, Administrator of Estate of JAMES STARLING FORAKER, v. DIMMITT HOFFMAN, Judge of Circuit Court

No. 26042

Supreme Court of Missouri

July 18, 1925

Peremptory writ awarded.

Paul Barnett for relator.

(1) Mandamus is the proper remedy. The possible right of appeal is not fully adequate, and mandamus will lie to compel the court to assume jurisdiction and try the cause. State v Dickey, 219 S.W. 367; State ex rel. v. Homer, 249 Mo. 58; State ex rel. v. Shackelford, 263 Mo 60; State ex rel. v. Phillips, 97 Mo. 331; Castello v. St. Louis Circuit Court, 28 Mo. 274; State ex rel. v. O'Bryan, 102 Mo. 259; State ex rel. v. Court, 73 Mo. 560; State ex rel. v Holtcamp, 266 Mo. 372; State ex rel. Fleming v. Shackelford, 263 Mo. 52. (2) The trial court had jurisdiction of this cause and should have proceeded to exercise that jurisdiction. Sec. 1180, R. S. 1919; Davis v. Farmers Co-op. Co., 262 U.S. 312; International Harvester Co. v. Kentucky, 234 U.S. 579. If the corporation is actually within the State, it may be sued according to the provisions of the local statutes and without regard to whether it is engaged in interstate commerce or not. Maverick Mills v. Davis, 294 F. 404; O'Brien v. So. Bell Tel. Co., 292 F. 379; Knapp v. Bullock Tractor Co., 242 F. 543; Farmers & Merchants Bank v. Fed. Reserve Bank, 286 F. 566; Mutual Life Ins. Co. v. Nicholis, 24 S.W. 910; Denver Co. v. Roller, 100 F. 738; State ex rel. v. Grimm, 239 Mo. 135; 15 C. J. 791; 14a C. J. 1383; Peoples Tobacco Co. v. American Tobacco Co., 246 U.S. 79; Stephen v. Union Pacific, 275 F. 709. (3) The action of the trial court infringed upon relator's constitutional rights. State ex rel. v. Grimm, 239 Mo. 181. (4) This suit is permitted by act of Congress. 2 Roberts, Fed. Liability of Carriers, 1591.

Montgomery & Rucker for respondent.

(1) A state has no power to pass a law which imposes an undue or unreasonable burden upon interstate commerce and such a law when passed is void. International Textbook Co. v. Pigg, 217 U.S. 91; W. U. Tel. Co. v. Kansas, 216 U.S. 1; Norfolk Railroad Co. v. Pennsylvania, 136 U.S. 114; McCall v. California, 136 U.S. 104; Piccard v. Pullman Car Co., 117 U.S. 34; Ashier v. Texas, 128 U.S. 129; Davis v. Farmers Co-op. Equity Co., 262 U.S. 312. (2) It is a burden upon interstate commerce to permit suits to be brought in any other state than that in which the plaintiff resided at the time of his injury or in which the cause of action accrued. Davis v. Farmers Co-op. Equity Co., 262 U.S. 312; Maverick Mills v. Davis, 294 F. 406. (3) The fact that the defendant corporation is domiciled in the state in which the action is brought does not make a statute permitting such action any less a burden upon interstate commerce. Galveston Ry. Co. v. Texas, 210 U.S. 217; Phila. Steamship Co. v. Pennsylvania, 122 U.S. 326; Minnesota v. Barbour, 136 U.S. 313; Rollins v. Shelby Co. Taxing Dist., 120 U.S. 489. (4) An unconstitutional law is void or voidable and a corporation may question its constitutionality if an injured party. Union Pac. Ry. Co. v. Smith, 33 Kan. 745; Oregon Ry. Co. v. Oregon Ry. Co., 23 F. 232; 14 C. J. p. 246. (5) The Federal Employers' Liability Act does not enlarge the jurisdiction of the State courts. Monder v. Ry. Co., 223 U.S. 1.

OPINION

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, Missouri.

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, Kansas, and left surviving him his father, J. B. Foraker, age seventy-nine years, and his mother, Emaline Foraker, age seventy-four 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, Kansas, 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, Missouri, and in and through the city of Wichita, Kansas. And at the time of the death of the said James Starling Foraker he was an employee 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 on to 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 employees. 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 employees.

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 1st 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 I 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 employees 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 often times 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 employees 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 of 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...